A   TREATISE 


PRmCIPLES  OF  PLEADL\G 


CIVIL  ACTIONS 


UNDER  THE 


NEW  YORK  CODE  OF  PROCEDURE. 

By   GEORGE  VAN   SANTVOORD, 

COUNSEIiOK  AT  LAW- 


ISTew   lEdition  — Enlarged,   and.   Correotod. 

By  NATHANIEL  C.  MOAK, 

COUNSELOR  AT  LAW. 


"The  substantial  rules  of  pleading  are  founded  in  strong  sense,  and  in  the  soundest 
and  closest  logic ;  and  so  appear  when  well  understood  and  explained ;  though.,  by 
being  misunderstood  and  misapplied,  tliey  are  often  made  use  of  as  instruments  of 
chicane."— Lord  Mansfield. 


ALBANY: 

JOHN    B.    PARSONS,    Jr.,    PUBLISHER, 

1873. 


Eptered  according  to  act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-thrae, 

By  JOHN  P.  PARSONS.  Jr  , 

la  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


T 


WEED,  PAR80NS  AND  COMPAy>  . 
PRINTERS     AND     8T  E  II  E  OX  Y  P  E  R  8, 
ALBANT,   N.  Y. 


PREFACE. 


Almost  the  first  step  a  lawyer  is  called  upon  to  take  in 
his  case  is  to  present  his  client's  cause  of  action  or  defense 
by  the  proper  pleading.  The  art  of  doing  this  with  neat- 
ness, perspicuity  and  in  logical  order  is  one  of  the  most 
desirable,  as  it  is  one  of  the  most  difficult,  attainments  in 
the  profession.  It  requires  a  thorough  knowledge  of  the 
law  of  the  entire  case  in  order  to  determine  what  facts  must 
necessarily  exist  and  be  alleged  in  order  that  the  cause  of 
action  or  defense  may  be  established.  In  many  cases  the 
form  or  the  substance  of  the  relief  to  be  obtained  depends 
upon  the  existence  or  non-existence  of  certain  other  facts, 
the  averment  of  which  being  optional  with  the  pleader,  he 
is  required  to  determine  in  advance  whether  he  will  allege 
them  or  not.  No  step  in  the  case  requires  more  caution  or 
shrewdness.  No  man  can  be  a  good  lawyer  who  is  not  a 
good  pleader.  If  he  do  not  know  what  facts  it  is  necessary 
to  allege,  he  cannot  know  what  it  will  be  necessary  to 
prove  at  the  trial,  and  he  will  be  found  at  nisi  prius,  with- 
out the  means  of  establishing  facts  which  oftentimes  exist, 
and  upon  which,  or  the  lack  of  which,  his  case  must  be 
determined  for  or  against  him.  Since  the  Code,  unfortun- 
ately for  the  profession  and  for  the  cause  of  justice,  lawyers 
and  judges  have  tod  often  regarded  the  science  of  pleading 
as  an  accomplishment  rather  than  a  requirement.  It  is 
now  a  quarter  of  a  century  since  its  adoption.  Its  object 
was  to  sweep  away  certain  forms  and  tecimical  distinctions 
not  deemed  necessary  for  the  proper  anJ  orderly  adminis- 


iv  PREFACE. 

tration  of  justice  between  suitors.  It  established  no  new 
rules  as  to  the  substance  of  a  good  pleading,  and  yet, 
within  the  scriptural  detinilion  of  idolatry,  a  considerable 
proportion  of  the  pleadings  of  the  present  day  might  be 
worshiped  without  fear  of  incurring  the  Divine  displeas- 
ure. If  the  present  work  shall  contribute  to  the  awakening 
of  an  increased  interest  in  regard  to  the  necessity  of  a 
higher  standard  of  pleading,  these  labors  will  not  have 
been  in  vain.  In  order  to  give  the  student  an  idea  of  the 
examination  of  the  law  of  a  case,  which  is  deemed  neces- 
t^ary  before  attempting  the  preparation  of  a  pleading,  some 
two  hundred  pages  (pp.  291-494)  of  new  matter  upon  various 
causes  of  action,  with  reference,  in  a  foot  note  to  each,  to 
the  more  prominent  works  which  may  be  consulted  with 
profit,  have  been  added.  About  fifty  pages  upon  defenses 
(pp.  661-707)  have  also  been  added.  They  are  given  in 
alphabetical  order.  It  was  at  first  intended  not  to  index 
the  new  matter  in  detail,  but  simply  to  refer,  in  the  index, 
to  the  subject.  In  order  to  present  an  illustration  or  quali- 
ficaiioii  01  the  subject  under  consideration,  a  case  there* 
given  has  been  occasionally  used  under  another,  thus  pre- 
senting a  few  seeming  repetitions.  The  index  is  new.  In 
preparing  it  the  editor  became  satisfied  that  the  value  of 
the  work  at  nisi  prlus  would  be  much  increased  by  fully 
indexing  the  n^ivf  matter,  and  this  has  been  done.  Had 
this  method  been  earlier  determined  upon,  the  few  seeming 
repetitions  could  have  been  avoided.  An  addenda  has 
been  added  (pp.  851-90o),  bringing  down  the  work  to  the 
time  the  index  goes  to  press.  The  editor's  own  matter  in 
tlie  body  of  the  work  is  included  within  brackets,  the 
marginal  imaging  being  preserved.  In  order  that  citations 
to  the  Revised  Statut<3s  and  Session  Laws  could  be  readily 
found  from  any  edition,  the  original  or  marginal  pagings 
have  been  given  with  a  further  reference  to  Judge  Edmonds's 


PREFACE.  7 

compilation  thereof.  It  was  at  first  proposed  to  follow  the 
present  volume  with  precedents,  but  as  the  Messrs.  Abbott 
have,  in  their  two  volumes  of  "Pleadings  and  Forms," 
given  the  profession  a  copious  and  an  excellent  set  of 
forms,  another  volume  would  be  superfluous.  A  volume 
of  forms  accompanied  the  last  edition  of  this  work,  but  as 
the  Messrs.  Abbott's  compilation  is  far  the  better,  it  is 
recommended  that  theirs  should  be  procured  by  those 
desiring  precedents,  rather  than  the  volume  originally 
published  as  Vol.  2  of  Van  Santvoord's  Pleadings. 

Mr.  Charles  J.  BucnAWAiT  has  read  the  proofs,  verified 
tlie  citations  and  rendered  much  valuable  assistance  in  the 
preparation  of  the  work. 

Mr.  Harry  Jeffersott  has  prepared  the  table  of  cases 
cited,  read  the  proofs  and  verified  the  citations  thereof. 

Albany,  Jidy,  1878. 

iSlATHANIEL  C.  MOAK. 


CONTENTS, 


CHAPTER  I. 

OF  PLEADIKGS  IN  GENEKAL. 


PAGB. 

7 


Sec.  1.  Origin  and  History  ot  Pleading 

Sec.  2.   Pleading  as  it  existed  before  the  Code 14 

Sec.  3.   General  Changes  effected  bv  the  Code > • 18 

Sec.  4.   Of  the  Rules  to  determine  the  sufficiency  of  the  Pleadings  under 

the  Code -" - ^^ 


CHAPTER  n. 

OF   THE   PAKTIES   TO   AN   ACTION. 

Sec.  1.   The  appearance  of  the  Parties -  •  -  -  53 

Sec.  2.   Who  are  the  proper  Parties  Plaintiff. 64 

Sec.  3.   Who  are  the  proper  Parties  Defendant 105 


Of  joinder  ot  actions 


CHAPTER  III. 

.   .    183 


CHAPTER  IV. 


of  the  complaint. 

Sec.  1.  The  Title  of  the  Complaint ,. .    .  154 

Sec.2.   Statement  of  facts . « 161 

Sec.  8.   The  Demand  for  Relief 272 

Sec.  4.   The  Verification - .  - --  279 

Sec.  5.   Supplemental  Complaint... o. 283 

CHAPTER  IV  A. 


Sec.  L  Complaint  in  Particular  Cases 


291 


CHAPTER  V. 
of  the  answer. 

Sec.  1 .   General  Nature  and  use  of  an  Answer 495 

Sec.  2.   General  and  Specific  Denial 510 

Sec.  3.   The  Statement  of  New  Matter  in  the  Answer 547 


vlii  CONTEXTS. 

PAGE, 

Sec.  4.  Counter-claim,  Nature  of,  and  when  and  how  pleaded 612 

Sec.  5.   The  Verification  of  the  Answer 641 

Sec.  6.   Sham,  Irrelevant  and  Frivolous  Answers  and  Defenses 645 

Sec.  7.   Supplemental  Answer 654 

CHAPTER  Va. 

Sec.  1.  Particular  Defenses 661 

CHAPTER  VI, 

OP  THE  REPLY, 

Sec.  1.    \Vhat  the  Reply  must  contain,  and  how  pleaded 706 

Sec.  2.   Verification  of  the  Reply 724 

Sec.  3.   Sham,  Irrelevant  and  Frivolous  Reply 725 

Sec.  4.   Supplemental  Reply 727 

CHAPTER  VII. 

OP  tue  dejiurrer. 

Sec.  1.  Nature  and  use  of  the  Demurrer . 730 

Sec.  2.   What  Matters  in  the  Complaint  may  be  Demurred  to 735 

Sec.  3.   What  Matters  in  an  Answer  or  Reply  may  be  Demurred  to 758 

Sec.  4.   Grounds  of  Demurrer,  how  to  be  stated 765 

Sec.  5.   Objection,  when  may  be  taken  by  Answer,  when  by  Motion  or 

Demurrer,  and  when  deemed  waived 769 

Sec.  6    Frivolous  Demurrer  and  Practice  thereon 775 

CHAPTER  VIII. 

OF  THE  ISSUE. 

Sec.  1.  Issues  of  Law  and  of  Fact 779 

Sec.  2.   How  and  where  Issues  are  to  be  tried 788 

Sec.  3.   Effect  of  the  Pleadings,  and  what  Facts  deemed  admitted 796 

Sec.  4.   How  Pleadings  to  be  construed , ,  , 803 

Ssc.  5.   Special  Rules  applicable  to  Pleadings 808 

CHAPTER  IX. 
OF  amettdments,  variances  and  mistakes  in  pleading. 
Pec.  1.   .\mendments   in  general,  how  and  when  allowed,  and  on  what 

terms 817 

Sec.  3.    Variances  between  Pleading  and  Proof 838 

Bec.  8.    Defects  in  Pleading,  when  and  how  aided 847 

Addenda 851 


TABLE  OF  CASES  CITED. 


Abbev.Clark.  .... •  |98 

Abbott  V.  New  York,  etc 208 

Abbott  V.  Parfltt a-^ 

Abbott  V.  Stratford 05^ 

Abeel  v.  Van  Gelder ]^, 

Abell  V.  Douglass *^o 

Aberdeen  v.  Blackman oU.J 

Abraham  v.  Conyngham ovi 

Abrey  v.  Crux oy~ 

Acker  V.  Finn ™ 

Ackerman  V.  Ackerman ■••-•••  *o 

Aokley  v.  Tarbox 55,  61, 133,  TOj 

Adams  v.  Adams 4^" 

Adams  v.  Bissell 140 

Adams  v.  Fort  Plain  Bank .  bW 

Adams  V.  Green 43i 

Adams  V.  Leland ••••  *"• 

Adams  v.  Mayor •  •  •  4o6,  487 

Adams  v.  Sage ow* 

Adams  V.  Sherrill ••••  1°" 

Adsitv.Brady ?il'  2r^ 

AiUvA  Ins.  Co.  V.  Wheeler 80b,  857 

Aicklinv.  Williams .-••  b(JU 

Aiken  V.Hyde 686,  b94 

Aiken  v.  Short -J'J 

Aiken  V.  Western,  etc wU 

Ainslie  V.  Boynton |'-'' 

Albany,  etc.,  v.  Devendorf o~:J 

Albany  V.  Wilbur 3~^ 

Ale  itt  V.  Boston,  etc    .      48o 

Alden  v.  Clark  103 

Alder  v.  Bloomingdale  . . .    175,  176, 177,  181 

Alderman  v.  French ■  •  •  •  T78 

Aldrich  V.  Albee 394,  701 

Aldrich  v.  Lapham ~~'^ 

Alexander  v.  Crosbie 41d 

Alexander  v.  Vane 38^ 

Alfred  V.  Watkins  .. .  644,  73o 

Alger  V.  Miller 399 

Alger  V.  Scoville 110, 134,  143 

Alger  V.  Sherman — 9o 

Allaire  V.  Ouland 293 

Allamon  v.  Mayor,  etc 406,493,  494 

Alleioan  V.  Dey ••••  |l04 

Allen  V.  Addington 3.57,  iM 

Allen  V.Brown 71,75,383,  498 

Allen  V.  Buffalo 442 

Allen  V.  Compton 819 

Allen  V.  Fosgate  12^ 

Allen  V.  Jaquish 380 

Allen  V.  McFherson 481 

Allen  V.  Malcolm 733 

Allen  V.  Mercantile  Ins.  Go 530 

Allenv.Mille 681 

Allen  v.  Patterson 199,  203,  211,  804,  806 

Allen  V.  Priestman 671 

AUenv.Smith 354 

Allen  V.Todd 901 

Allis  V.  Leonard 537,546,648 

Althorf  V.  Wolfe 375,  451 

Alwoodv. 376,413 

Ambler  V.  Skinner 364 

Amburgher  V.  Marvin 306,  674 

AjDierican,  etc.,  v.  Son 666 


PAOK. 

Ames  V.  Armstrong •  •  •  873 

Ames  V.  Harper ••  130,  idl 

Amesbury  v.  Bowditch 677 

Amey  v.  Long •  ■  -  •  48d 

Amoskeag,  etc.,  v.  Garner 447,  (04 

Amy  V.  Supervisors •  •  •  •  ;x'  000 

Anable  v.  Aiiable ••  59,  383 

Anable  V.  Conklin olb,  .8. 

Anable  v.  Steam  Engine  Co •  •  ■  53^ 

Anderson  V.  Anderson.... 100,  103 

Anderson  V.  Case 8(7 

Anderson  v.  Dickie  . .  •  •  •  -  -  •  •  •  •  384 

Anderson  v.  Hill ...  60,  Itl,  143,  264,  374,  753 

Anderson  v.  New  Jersey,  etc 374 

Anderson  v.  Nichols 336,  4bO 

Anderson  V.  Sherwood ■•._•  405 

Andrews  V.  Astor  Bank lo,  177 

Andrews  V.  Foster 399 

Andrews  V.  Powys -■•    481 

Andrews  v.  Rowan 330,  411 

Andrews  V.  Storms 644 

Angell  v.  Madden 357 

Angle  v.  Bowditch 454 

Angus  V.  Angus  .     ^39 

Anibal  v.  Hunter 572,573,  (65 

Annett  V.  Kerr  .. ••••    94 

Anonymous 573,  597,  638,  655,  701,  703 

Ansell  V.  Kobson •••    '"^^ 

Anthony  v.  Haney 396,444,451 

Appleby  v.  Brown "91 

Appleby  v.  Elkins 356,  529,  770,  ( (b 

Aranguren  V.  Scolfield 368 

Archbold  v.  Sweet 300 

Archer  V.  Hudson 440 

Argallv.  Bryant ■  •  ■  ■  681 

Arietta  v.  Morrisey 268,  6M 

Armitage  V.  Pulver 3(4 

Armstrong  v.  Hall HO 

Armstrong  V.  Lewis b(6 

Armstrong  V.  Stolies b8» 

Armstrong  V.  Toler 383 

Arnold  v.  Bernard 3(^ 

Arnold  V.  Dimou ■   ■  597 

Arnold  v.  Hudson,  etc 4(7,  478 

Arnold  V.Park •''''"'  rSX 

Arnold  v.  The  Rock •  •  •  ■  •  •  •  oM 

Arthur  v.  Brooks. .  536,  532,  515,  603,  605,  7b5 

Artie,  etc.,  v.  Austin ^ 

Ash  V.Cook loy 

Ashburner  V.  Balchen |o? 

Ashby  V.  National  Bank <>^ 

Ashbvv.  White iwr  ^n 

Ashley  v.  Marshall 664,  (87 

Aspinwallv.  London,  etc..    .....  ....  691 

Aspinwall  v.  Torrance 133,  393,  AM 

Astorv.Hoyt »     474 

Astorv.  Miller 474 

Atcheson  v.  Mallon »'0 

Atchison  v.  Ballon 349 

Atherton  v.  Belden wl 

Atkinson  V.  Collins 49- 

Atkinson  v.  Jlouks 3ob 

Atkinson  V.  Nesbitt  et  al -.  oo* 

I  Atlantic,  etc.,  V.  Johnson obt 


TABLE   OF   CASES   CITED. 


PAGE. 

Atocha  V.  Garcia 251? 

Attorney-General  v.  Manderson «M1 

Attoruey-G eneral  v.  Moor 3T8 

Attoriiey-Geiier:ii  V.  Paitington 3i9 

Attorney-General  V.  Poole 112 

Attorney-General  V.  Salem 4i;i! 

Attorney-General  V.  Stowell 4TG 

Atwater  v .  Atwater 2;4 

Atwaler  v.  Clancy 891,  902 

Atwell  V.  Leroy 70,    72 

Aubrey  v.  Fiske 254,  tiSJ 

Auburn,  etc.,  v.  Douglass 225,  4t)0 

Auburn  Bank  V.  Leohard 293 

Auclunutyv.  Ham  111.294,  296 

Auduljon  V.  Excelsior,  etc 672 

Aurora  City  V.  West    732 

Austin  V.  Goodrich 857 

Austin  V.  Hudson  K.  R.  Co 449 

Austin  V.  Rawdon 191, 192, 193,  362,  84:3 

Austin  V.  Searing 97 

Austin  V.  Vandermark —  403 

Averill  V.  Patterson 497 

Averill  v.  Taylor,  279, 438, 523, 587, 631,  755,  797 

Averill  V.  Williams 453 

Awde  V.  Dixon 698 

Ayrault  V.  Chamberlain  606 

Ayrault  V.  Green. .  402 

Ayrault  V.  Pacilic  Bank 246,  389 

Ayres  v.  Covill 606,  802,  812 

Ayres  v.  O'Farrell 633 

Bahbett  v.  Young 840,  844 

Babcock  V.  Reman 292 

Babcock  V.  L.  S.  &>!.  R.  R.  Co a">6 

Babcock  V.  Utter 317,  478,  479,  079 

Baclielder  V.  Fiske 4:38 

Baclu'lder  v.  Low .     (J6ti 

Bachelor  V.  Priest 3S'5 

Backiiouse  v.  Bcnomi 449 

Backnian  V.  .lenks 676 

Backus  »'.  Sliiplierd 344 

Bacon  V.  Townsend 370 

Bacon  V.  Ileiichley 468,  469 

Badger  V.  JiailiTcr  6,S2 

Badger  V.  Buiicdict  ...     140,264 

Bairar  V.  King ;)33 

Uag-att  V.  Boulger 664,  745 

Baglcy  V.  Decker 71,  425,  426 

Bagleyv.  Smith 364,397,403 

Bagnall  V.  London,  etc 3S7 

Bat.'shaw  V.  Eastern,  etc 109 

Bailey  v.  Belmont 350 

Bailey  v.  Easterly 758 

Bailev  v.  Hudson  R.  R.  K. Co 856 

Bailey  v.  Ingleeetal 80,  107 

Bailey  v.  Kay 832,  hiM 

Bailey  V.  Lane 692 

Bailey  v.  Uobson 352 

Bailey  v.  Ryder 562,  738,  787 

Bailey  v.  Southwick 857 

Baily  v.  Dennett 88 

Baird  V.  Gillett 391 

Baker  v.  Chase 326 

Baker  v.  City  of  Utica 492 

Baker  V.  HIgglns 304 

Baker  V.  Hoag 422,874 

Baker  V.  J<duison 405,676 

Baker  V.  Norton 101 

Baker  V.  Pliitner    344 

Balcom  v.  Woodruff 832,  KW. 

Dalde  v.  Smith 6<i;{ 

Baldwin  V.  City  of  Oswego 492 

Balihvin  v.  Kiminel 371 

Balil win  V.  Lawrence S} 

Baldwin  v.  Munn 40.5,  5(M I 

B*ild«in  V.  United  Telecraph  Co..  606,  700 

Baley  v.  Buckland 300 

Ball  V,  BuUari 54,    60 

Ball  V.Gardner 46.3 

Ball  V.  Loom  Is 452 


FAOB. 

Ball  V.  Matthews 685 

Ball  V.  Newton 486 

Ball  V.Nye 386 

Ballard  v.  Burggett 457 

Baltimore,  etc.,  v.  Fitzpatrick 870 

Baltimore,  etc.,  v.  State 883 

Bancroit  V.  Warden 466 

Bank,  etc.,  v.  City. 442 

Bank  V.  Davis 394 

Banx.  V.  Huntington 363 

Bank,  etc.,  v.  Union  Bank  , .   467 

Bank  of  Britinh  Noi  ih  America  v.  Suy-    . 

dam 81,  114,  140,  A3 

Bank  of  Commonwealth  v.  Mayor,  etc.,  441 

Bank  of  Cooperstown  V.  Corlles 533 

Banii  of  Geneva  V.  Gulick.  ...  176,177,  178 

Bank  of  Geneva  v.  Reynolds &31 

Bank  of  Kingsto  n  v.  Chester 438 

Bank  of  Havana  v.  Magee 96 

Bank  of  Toronto  v.  Hunter...  599,  610,  611 

Bankart  V.  Tennant 497 

Banks  v.  Burns 697 

Banks  v.  Gibson 341 

Bannatyne  v.  Barringtbn 436 

Banta  V.  Marcellus 103 

Banyerv.  Empie 326,  327 

Barber  v.  Hubbard 251 

Barber  V.  Lesiter 338 

Barber  v.  Morgan 270 

Barclay  V,  Quicksilver,  etc 855 

Baiger  V.  Durvin 681 

Barker  v.  Cassidy 520,  874 

Barker  V.  1  oomis 95,311 

f  5arker  v.  Russel S52 

Barlow  v.  Barlow 324 

Barlow  V.  Scott 140,  842 

Barnard  v.  Gushing 410,  693 

Uiiiiiard  V.  Heydrick    58 

Barnard  v.  M(jnnot 304,  305 

Barne  V.  Madden 317 

Barnes  v.  Allen 347 

Barnes  V.  Harris  £08,  363 

Barnes  v.  Moore 666 

Barnes  v.  Perine 836 

Barnes  v.  Smith Ill 

Barnes  v.  Underwood 330 

Barnesv.Wend 346 

Barney  V.  Dewey 473 

Barney  v.  Loper 465 

Barney  V.  Worthington 192 

Barnum  V.  Gains • 238 

Barnum  V.  Van  Dusen 448 

Barrett  V.  Long 36T 

Barrett  v.  Third  Av.,  etc 744 

Barrett  v.  Warren 216,  458 

Bartholomow  v.  Jackson 491 

Bartlcttv.  Hoppock 470 

Bartley  V.  Riclitmyer 400,  425,  426 

Barton  v.  Hermance    486 

Barton  v.  Sackett  et  al 605,  796 

Basebe  v.  Matthews 370 

Biiss  V.  Comstock 222,  264,  274,  753 

Baas  v.  Pierce 75,301 

Bassettv.  Bassett 682 

Bitssett  V.  Brown 669,  700 

Bate  V.  Graham 85,  128,  834,  843 

Bates  V.  Fellows 288 

Bates  V.  New  Orleans,  etc 74J 

Bates  V.  Rosekrans 191,  617,  088,  699 

Bates  V.  V'oorhies 830 

Batterbury  v.  X'yse 487 

liatterman  v.  Fiim 865 

Battermai\  v.  Pierce 626,627.  694 

Battle  v.  Thompson 640 

Baunian  v.  New  York  Central  R.R.  Co.,  795 

Baxter  v.  Arnold 153 

Baxter  v.  Second,  etc 3ts5 

Baxter  v.  Smack &J4 

Beach  v.  Bay  State  Co 8(4 

Beach  V.  Cook 412 


TABLE   OF   CASES   CITED. 


XI 


PAOE. 

Beach  v.  Gallup 517,  525 

Beach  t.  Gresorj' 100 

Beach  V.  Smith 69() 

Beadles  V.  Burch 112 

Beakv.  Beak 675 

Bealo  V.  Hayes    275,  278,  756 

Beais  V.  Cameron 727 

Be:iii  V.  J()ue3 168 

Bean  v.  I'arker 4t)3 

Beardsley,  etc.,  v.  Foster 81, 138.  318 

Beardsley  v.  Knot 382 

Beardsley  v.  Stover 619,  825,  820 

Beaty  v.  Swartout 562,  56;$ 

Becliorvaise  V.  Lewis 6:^3,  699 

Beck  V.  Stephani 285 

Becker  V.  Great  Eastern,  ate 408 

Becker  v.  Lainont 392 

Bock  with  V.  Union  Bank 623 

Bedell  V.  Hoffman 355,356 

Bedell  V.  Powell 497 

Bedell  V.  Stickels ....    240,722,784 

Bedford  v.  Terhune 416,  832 

Beelie  V.  Bank...  .  366 

Beebe  v.  Griffin 236,  400 

Beebe  V.  Moore 169 

Beech  v.  Gallup 173,  777 

Beecher  V.  Ackerman 310,408 

Beekman  V.  Cutler 719,731 

Beekman  V.  Platner 199,205,  268 

Beers  v.  VVaterbury 632 

Belden  v.  Meeker 233,  2ftS 

Belknap  V.  National,  etc  334 

Belknap  v.  Seeley 274,  787 

Belknap  V.  Trimble 108 

Bell  V.  Dunmore 289 

Bellinger  v.  Craigue 515 

Bellinger  V.  Kitts 703 

Bellinger  V.  New  York  C.R.R.  Co 477 

Bellows  V.  Lovell 698 

Bellows  V.  Sackett 365,  451 

Bellows  V.  Shannon 786 

Bemau  v.  Tugnot 208 

Bemis  v.  Bronson 825 

Bemus  V.  Beekman 10;) 

Bender  V.  Comstock 159 

Eendit  v.  Annesley 690 

Benditson  V.  French 354 

Benedict  v.  Beebe 491 

Benedict  V.  Howard 441 

Benedict  v.  Seymour 149,  204,  265,  508 

511,  548,  554,  583,  607,  608,  812 

Benjamin  V.  Taylor 110.143 

Benkard  V.  Babcock 694,695 

Bennett  V.  Abrams 433,434 

Bennett  V.  Brown 463 

Bennett  v.  Cook 683 

Bennett  v.Judson 193,  195 

Bennett  v.  Lake 837,  829,  830,  836 

Bennett  V.  Smith 347 

Bennett  V.  Vade 113 

Bennett  V.  Walker 564 

Benomi  v.  Backhouse 449 

Benson  v.  Berry 453 

Benson  v.  Monroe 466,  467 

Benson  v.  Paine 122 

Bent  V.  Bent 661 

Bentley  V.  Jones 270,794 

Bentlev  V.  Smith 414,435,  746 

Benton  V.  Pratt 337,  738 

Bei'dan  v.  Sedgwick 71 

Bergen  V.  Stewart 464 

liergen  v.  Wemple 489 

Berkshire  Co.  V.  Walcott 843 

Berlin  V.  Hall 361 

Uernardv.  Wilcox 146 

Ben-ian  V.  Mayor 663 

Berry  V.  Hemmingway 338,  350 

Berry  v.  Morse 664 

Best  V.  Bander 676 

Betta  V.  Gibbons 293 


PAGE. 

Betts  V.  Hillman 340 

Bettinger  v.  Bridenbecker 863 

Betzv.Betz 288 

Beusel  V.  Lynch 666 

Beyerv.  Marks 431,  4a5 

Bibb  V.Pope 371 

Bidwell  V.  Cotton 668 

Bigelow  V.  Ayrault , 317 

Bigelow  V.  Dunn 829 

Bigelow's  Ex'r  V.  Bigelow 671 

Bigge  V.  Parkinson 471,  473 

Bildersee  V.  Aden 463,  705 

Bingham  v.  Ratcliff 291 

Biiiingerv.  Wattles —  447 

Birbeck  V.  Stafford 70,  299 

Birdseye  v.  Frost 47 

Birdseye  V.  Smith  150 

Bisby  V.Shaw 573 

Bishop  V.  Bishop 497,  773 

Bishop  V.  Edmiston 111,497,  777 

Bixby  V.  Moore 870 

Bixby  V.  Wood 73,  193,  231 

Black  V.  Ottoman  Bank 897 

Blackburn  v.  Gregson 366 

Blaokmar  V.  Thomas 3,    13 

Blackstock  v.  New  York,  etc 676 

Blagrave  v.  Bristol,  etc....  331,  338,  339,  450 

Blaidsdell  V.  Raymond 210,  601 

Blaisdell  V.  Portsmouth,  etc —  873 

Blainv.  Agar 108 

Blake  v.  City  of  Brooklyn 443 

Blake  V.  Eldred    516,  536 

Blake  v.  Michigan,  etc 313 

Bianchard  V.  Ely 113,  404 

Blanchard  V.  Strait 199,  609 

Bland  V.  Swafford 483 

Blatcnford  V.  Ross 314 

Blattmacher  v.  Saal 854 

Blest  V.  Brown 699 

Bliss  V.  Bliss ...  675 

Bliss  V.  Cottle 323 

Bliven  v.  Hudson  R.  R.  R.  Co 308,  666 

Blodget  V.  Blodget 100 

Bloodworth  v.  Gray 893 

Blossom  V.  Barrett 144,  484,  749,  771 

Blossom  V.  Barry 389 

Blowers  v.  Sturtevant 347 

Bloxam  V.  Warner 392 

Blunt  V.  Aiken 365 

Board  of  Comm'rs  v.  Vanderbilt 687 

Board,  etc.,  v.  Erie,  etc 393,  449 

Board,  etc.,  v.  White 369 

Boddyv.Kent 103 

Bogardus  v.  Parker. ...  133, 141,  237,  610,  635 

Bogardus  V.  Bichtmyer 690 

Bogert  V.  Bogert , 400 

Bolinbroke  V.  Kerr 329 

Bollesv.Duff 413 

Bolton  V.  Prentice 347 

Bonar  v.  McDonald 440 

Boniiace  V.  Relyea 373 

Bond  V.  Mitchell 316 

Bond  V.  Patterson 179 

Bond  V.  Wlllett 453 

Boosey  V.  Wood 878 

Boot  V.  Bentley 393 

Boothby  V.  Plaisted 870 

Boothby  V.  Scales .  ...  694 

Borrowman  V.  Rossel -.    .     .  684 

Bos  V.  Seaman 94 

Boston,  etc.,  v.  Shanly 879 

Boston,  The 260 

Bostwick  V.  Abbott 673 

Boucicault  V.  Wood 314 

Bough  ton  V.  Smith. 71 

Boulter  V.  Arnott 343 

,  Bouton  V.  City  of  Brooklyn  ...    81,  87,  748 

'  Bowditch  V.  Green 439 

Bowen  V.  Bowen 398,  489 

Bowen  V.  Evans 838 


xu 


TABLE   OF   CASES   CITED. 


PAGE. 

Bowenv.  Tenner 75,301,  461 

Bowen  V.  Kenvan 335 

Bowers  v.  Bradley _•  •  •  6i t> 

Bowers  v.  Brower 313,  481 

Bowers  V.  Smith 313,481 

Bowie  V.  Brahe 3-7 

Bowker  V.  Cliilds wj:. 

Bowman  v.  'rallman  ..  299,  300,  328,  4U,  6b. 

Bowne  V.  Joy 497 

Bowno  V.  Miller 316 

Bowyer  V.  Prichard  3oi 

Boyce  V.  Brockway 453 

Boyce  v.  Brown ....  38. 163,  265,  266,  267,  o96 
601,  607,  735,  758 

Boyes  v.  Tiedman 142,  1+4 

Boylen  V.  Mc.\voy oS 

llovnton  V.  Kello^K •>'4 

Braivhridjie  V.  Buckley 3ii4 

Bracklin  V.  Fonda +7 

Brary  v.  Kibble. .  426 

Bradbee  v.  Mayor,  etc 869,880,  899 

Bradburv  v.  Mor;ran 344,  675 

Bradley  V.  Aldrich 561,  842 

Bradley  V.  bunipace M" 

Bradlov  v.  Wheeler 405 

Bradner  v.  Falkner 4.54 

Bradshaw  v.  Beard 348 

Bradshaw  V.  Sultan Si'3 

Brady  V.  Bissell 72 

Brady  V   Hennion 327 

Brady  v.  .Mayor 443 

l>ra(ly  v.  Weeks 8(5,  141,  14:5 

Brad'v  v.  McKosker 750,  751,  7.52 

Brasev.  Bickford 283 

Braman  v.  Johnson 24,  737 

Jiranclii  v.  Niish 424 

Brand  v.  Schenectady  &  Troy  R.  R.Cc,  720 

Branding  V.  Ord 564 

iJramlreth  v.  Lance 407 

Brazil  v.  Ishani 564 

Breese  v.  United  States  Tel.  Co 683 

Brennan  v.  Haff 421 

Brennan  V.  Perry 305 

Brt'iity  V.  Todd 393 

Brett  V.  Fii-st.etc 881,892 

Bretz  V.  Mayor 20H 

Brt-wer  V.  Temple 141 

Brewster  v.  Sik-nce 125 

lirewster  v.  Van  Ness 322 

Brickett  V.  Davis 206 

liridenbecki-r  v.  Board 97,  376 

Bridue  v.  Pay.san..  118,  270,  599,  607,  714,  799 

Bridirer  V.  Pierison 473 

Brlfc'irs  V.  French       408 

Bricks  V.  Un we 305 

BriKp  V.  Va-'e 620 

Briiiliam  v.  Bush 4.54 

Britrlit  v.l'urrie 816 

Brit'htlv  V.  Norton 410 

Brlnkerhoffv.  Brown 107,114 

Brimkcrhotr  V.  Olp 703 

liriiisMii-ad  V.  Harrison 673,  74-t 

Bri.Htol  V.  Kens.  6i  Saratoga  R.  R.  Co. ..  16^t 
214,  754,  774,  786 

Brlttain  V.  Inhabitant 880 

Brltt'inv.  Moyd 3.^1 

Britton  V.  Frink 468 

Brmidbcnt  V.  Hamsbotham 477 

Brobstv.  Ilrock 413 

Brocknway  V.  Burnap 'Mt 

Bro.k.-ii  V.  Bush 3'^ 

Brornllulil  y.  Jones i'M 

Bron.M.iii  V.  Wlman 136,702 

Broiik  V.  Hook 899 

Brook  PS  V.  Dean 393 

Bro  iklyn  Central  R.  R.  Co.  v.  Brooklyn 

City  K.  K.  Ci A43 

Brooklyn  City  R.  R.  Co. ▼..Coney  Island, 

etc .      AYi 

Brookinan  v.  Motcalf 2U8 


PAO. 

Broome  v.  Be^-rdsley 288,  6'( 

Broome  T.  Peck 81,82,    U'. 

Brooks  7.  Bemis 5."^' 

Brooks  V.  Curtis sro 

Brojkerson  V.  Consalus 103 

Brown  v.  The  Accrington,  etc 374 

Brown  v.  Ackroyd 348 

Prown  V.  Babcock 833,  824,  825,  829 

Brown  V.  Bachelor 343 

Brown  V.  Birdsall 118 

Brown  v.  Boven 480 

Brown  V.  Brown 140,  326,  349,  670 

Brown  v.  Butler 337 

Brown  v.  Colie 180,  301,  570,  835 

brown  V.  Cooper 696 

Brown  V.  Culnon 204 

Brown  V.  Eaton  161 

Bro.vn  v.  Edtrinton 903 

Bi'o wa  V.  Feeter 455,  458 

Brown  V.  Ferguson 690,701 

Bro\?n  V.  Higden 564,565 

BroA'n  V.  Jennison 647,  651,  653 

Brown  v.  Johnson 403 

Brown  V.  Lakeman 370 

I5rown  v.  Leigh 857 

Brown  V.  McCune 351,  721,  834 

Brown  v.  McGraW 312 

Brown  v.  Mclntyre 370 

Brown  V.  Mallett 219,  387 

Brown  V.  Nichols 102 

Brown  V.  Orvis 574,  575,  581 

Brown  v.  Parker 875 

Brown  v.  Peabody 4,51 

Brown  V.  Penfleld 75 

Brown  V.  Kichardson 288,  565,  659 

Brown  v.  Saratoga  R.  R.  Co 778,  819 

Brown  v.  Weber 674 

Bri^wn  V.  Willington 4-1:4 

Brownson  V.  Gifford 114,745 

Bruce  v.  Davenport 454,  669 

Bruen  v.  Hone 291 

Brucker  V.  Fromont 221 

Bruff  V.Mali 110 

Brush  V.  Blanchard.     398,489 

Bryan  v.Heck 393 

Brusli  V  Kohn 701 

Bryan  v.  Knickerbocker  411 

Bryantv.  American  Tel.  Co 320 

Brvant  v.  Bryant 573,  840 

Bryant  V.  Flight 86 

Brymer  v.  Buchanan 3.")7 

Bryson  v.  Whitehead , 352 

Bubb  V.  Yelverton .  476 

Buchanan  v.  Paddleford (V'l^i 

Buckv.  Amidan 293 

Buck  v.  Lockport 878 

Buck  V.  Remsen 75,301 

Buckingliam  v.  Payne 390 

l!u(•k^la^tcr  v.  Thomson 429 

Bucknam  V.  Brett 146,  .564 

Budd  V.  Bingham 143 

Buddington  v.  Davis....  40, 163,  572,  .581,  598 

603,  811 

Buel  v.Boughton 380 

Buol  V.  Cole 403 

Buel  V.  Dewey 661 

Buiralo,  etc.,  V.  Howard 433 

Buffalo,  etc.,  v.  Johnson 497 

Buffalo,  etc.,  v.  Lanipsan 310 

Huliler  V.  Wentwortli 572,  597,  603 

Bulen  V.  Buvdell 400,  831 

Bullardv.  Kayner 71,  383 

Bundv  V.  I'-irdsall 414 

Buiulv  V.  Hyde 398,  399 

Bungc  V.  Kt^op 663,  .SJO 

Bunnell  v.  Greathead 564,  567 

Burdick  V.  Garrick 683 

Burdick  v.  Washburn 8G4 

Burge.ssv.  Abbott 499,661,663 

Burgess  v.  Burgess ^.45,446 


TABLE   OF   CASES   CITED. 


xm 


PAGE. 

ijurgess  V.  Carpenter 376 

Burgess  v.  Eve W5 

Burtret  V.  Bissell 35,  247,  rM 

f'ii-i>ett  V.  O'Reagan 342 

i>urtrii  V.  Legga 5fi6 

B^igiiart  V.  Golden 300 

Burghart  V.  Rice 310 

Burlcwell  V.  O'Keef 323 

Burk  V.  Phillips 400 

Burke  v.  Broadway,  etc.,  R.  B.  Co 240 

Burkev.  Wills 423 

Burkholder's  Ex.  v.  Plank 884 

Burkle  v.  Luce 69 

Burkwell  V.  O'Keef 323 

Buriock  V.  Peek 317 

Burn  V.  Morris 455,  458 

Burnap  V.  Babcock 832 

Burnam  v.  Butler 390 

Burnby  v.  Bollett 471 

Burner  V.  Perrine 437 

Burnett  V.  G Wynne 75 

Burnham  v.  DeBoise 754,  774,  787 

Burnhain  v.  Onderdonk 238 

Burnliam  v.  Seaverns 371 

Burnham  v.  Webster 362,  363 

Burns  v.  Erben 331,  332,  369 

Burns  V.  O'Kourke 360 

Burrv.Miles 478,  479 

Burr  V.  Wright 762 

Burrall  v.  DeGroot 520 

Burrall  v.  Moore 819,  821 

Burrill  v.  Watertown,  etc 335 

Burrow  v.  Humphreys 482 

Burrows  v.  March 341 

Burrows  v.  Miller 744 

Burt  V.  British,  etc 844 

Burt  V.  Burt 213 

Burt  V.  Dewey 473 

Burt  V.Horner 344 

Burt  V.  Place 370 

Burtien  v.  Rutherford 874 

Burtis  V.Thomson 179 

Bush  V.Lyon 301 

Busby  V.  Conoway 349,  350,  668 

BusJi  V.  Prosser,  550, 551, 573,  574. 576, 578 ,  586 

606 

Bush  V.  Tilley 829 

Bush  V.  Treadwell 792 

Bush  V.  Woodward 326 

Buswell  V.  Pioneers 663,  687,  688 

Butchers'  Bank  v.  Jacob3on 172 

Butler  V.  Galletti 353 

Butler  V.  Lee 40 

Butler  V.  Liverraore 192 

Butler  V.  Mason 306,  355,  754 

Butler  V.  Mulvlhill 872 

Butler  V.  New  York,  etc.,  R.  R.  Co..  68,    70 

Butler  V.  Rawson 127 

Butler  V.  Tucker 486 

Butler  V.  Wentworth 573,  581 

Butler  V.Wood 313,  733,  755,  762 

Butler's  Case 410 

Butterfleld  v.  Ashley 398 

Butterworth  v.  Crawford 478 

Butterworth  V.  Gould 380,381 

Button  v.  McAulay 345,  567 

Butts  v.  Burnett 457 

Butts  V.  Rosekrans 804 

Buttsv.  Genu  ig 114,  119 

Butts  V.Wood 109 

Byrne  v.  Romaine 434 

Cabot  V.  Haskins 168 

Cabot  Bank  v.  Morton 470 

Cadyv.Potter 693 

Cadv  V.  Sheldon 344 

Cahill  V.  Palmer 184,  187 

(Xlioon  V.  Bank  of  Utica, 36, 140, 147, 26:3,  790 

Cain«  V.  Coulton 690 

Calanan  v.  McClure .  680 


PAOB. 

Caldwell  v.  Raymond 367 

Calkins  v.  Atkinson 141 

Callendar  V.  Howard 615 

Callisherv.  Bischoffsheim 168,668 

Camden  V.  Doremus 623 

Camden  Bank  v.  Rodgers 73 

Cameron  V.  Young 103,107 

Camfleld  v.  Fairbanks 866 

Campbell  v.  Burch 68,  333,  298 

Campbell  V.  Carter 347 

Campbell  v.  Consalus 310,  787 

Campbell  v.  Foster 411 

Campbell  v.  Genet 620 

Campbell  v.  Hoyt 703 

Campbell  V.  McCoy 479 

Campbell  v.  Wenlock 364 

Campbell  V.  White 683 

Campbell  v.  Woodworth 473 

Campbell  v.  Wright 141,  191 

Camroys  v.  Scurr 303 

Canal  V.Clark 446 

Canal  Bank  v.  Bank  of  Albany....  378,  380 

Candee  v.  Deere 447 

Canfield  v.  Ford Ill 

Cannon  v.  Grantham 869 

Canover  v.  Cooper 399 

Cantine  v.  Clark 453 

Garden  v.  MoNiel 344 

Carew  v.  Rutherford 670 

Carey  V.  Berkshire,  etc 397 

Carey  V.  Cincinnati,  etc 436 

Carhart  v.  Auburn  Express,  etc 478 

Carhart  v .  French 480 

Carleton  v.  Franconia,  etc 386 

Carley  V.  Wilkins 775,787 

Carlyle  v.  Southeastern  Railway 83 

Carman  v.  l*lass 126 

Carman  v.  Pultz 703,  7a3 

Carman  v.  Townsend 361 

Carman  v.  Trude 473 

Carpenter  v.  Bell 354,  565,  653,  686 

Carpenter  v.  Halsey 450 

Caipeuter  v.  Minturn 858,  8T5 

Carpenter  V.  Oswego,  etc 409,  443 

Carpenter  v.  Ottley 588,  631 

Carpenter  V.  Stevens 69,  694 

Carpenter  v.  West. .  35,  341,  347,  348,  249,  590 

Carrington  v.  Crocker 89,673,883,  757 

Carroll  v.  Cone , 323 

Carron,  etc.,  v.  Hunter 481 

Carter  V.  Hanimett 416 

Carter  v.  Hope 620 

Carter  V.  Kingman 323 

Carter  V.  Koezley 209 

Carter  v.  Roberts 437 

Carter  v.  Simpson 864 

Carter  V.  Towne 386 

Carter  V.  Williams 353 

Caruthers  V.  Bolls  454 

Carver  V.  Creque 71 

Gary  v.  Hotaling 459 

Case  V.  Abeel 146 

Case  v.  Carroll 269 

Cassin  v.  Delany 346 

Castle  V.  Duryea 387 

Castle  v.Noyes 293 

Castle  V.  Playford 465 

Castle  V.  Wilkinson 435 

Caswell  V.  Bushnell 543,  648 

Caswell  V.  Davis 445 

Catlin  v.  Gunter 510.  511,  517,  536,  554 

558,  562,  842,  844,  846 

Catlin  v.  Hansen 562,839 

Caussidere  v.  Beers 314,  314,  340 

Cavill  V.  Prince C69 

Cayuga  County  Bank  v.  Warden...  839,  8;j4 

Cazet  V.  Hubbell 100 

Cemeterv  Board  v.  Teller 159,  161 

Central  Hank  v.  Pindar 191,  459,  669,  700 

Chadwick  v.  Booth 35S 


XIV 


TABLE   OF   CASES   CITED. 


PAGE. 

Chadwlck»  Lamb 301,  375 

Oialmer  V.  Shackle 6T6 

Chamberlain  v.  Morgan 4* 

Chamber:*  V.  Miller *^1 

Chainphiia  V.  Bniwn *85 

Champlain  V.  Kailway,  etc ftf^ 

Champlain  V.  Valentine Sil 

Champlin  V.  Parish 5o5 

Chaii.ellorv.  Ualdwin M 

Chandler  V.  .Toliiison 6i0 

Chatinoa  V.  Lusk 443 

Chapin  V.  Shafer 870 

Chaplain  v.Dietz •••  ^*^^ 

Chapman  v.  Chapman  .     . .  £.99,  5":?,  5£6,  533 

Chapman  v.  Gates 404 

Chapman  V.  Palmer 517 

Chapman  V.  Robertson 716 

Chapman  V.  Robinson 618 

Chai.man  v.  Webb 834,  829 

Chappell  V.  Blssell 177 

Chappel  V.  Durston 715 

Charlwood  v.  Greig 2!i5 

Chaise  V.  Biirnside 513 

Chase  V.  Cochran ■  861 

Chase  v.  Ewing 6(54 

Chase  V.  Hamilton,  etc 684 

Chase  v.  Hatch 676 

Chase  v.  Peck 317 

Chaseman  v.  Richards 478 

Cheesebr.)Ugli  v.  N.  Y.  &  Erie  R.  R.  Co.  173 

Cheesman  v.  Sturges 288,  833 

Cheever  V.  Wilson 371 

Cheney  v.  Deals 329 

Cheney  v.  Garbutt 251,  253 

Cherry-  v.  McDougal 293,  330 

Cherry  v.  Mnnro  114,  468 

Cheshire  R.  R.  Co.  v.  Foster. ..,, 900 

Chester  v.  Bank 438 

Chliairo  V.  Robbins 345,  346 

Child  V.  Brace 318 

Childers  v.  Wooler 300,  453 

Childs  V.  Barnura 168 

Chilton  V.  Braiden 366 

Christianson  v.  Linford 377,414,  670 

Christie  v.  Corbett 309,  843 

Christie  V.  Herrick 80,114,116 

Christy  V.  Libby 667 

Chubuck  V.  Vernam 391 

Churchill  v.  Churchill 150,  367 

Chun-hill  V.  Hunt 303 

City  Hank  v.  Haniis 357,  423 

City  Bank  V.  Perkins 75 

City  of  Buffalo  V.  Holloway 218 

City  of  .Memphis  V.  Brown 668 

City  of  Phila<lclphiav.  Collins 396 

City  of  Uiicliester  V.  Erickson 686 

Clatlin  V.  Ball iiXi 

Cllapp  V.  Graves 316,  363 

Clapp  V.  Schutt 70 

Clapper  V.  Fitzgerald 641 

Clark  V.  Atkinson 206 

Clark  V.  Cleveland 370 

Clark  V.  Crego 230,  774 

Clark  V.  (,'randall 5(i«,  703 

Clark  V.  Fitch 435,  426 

Clark  V.  (iilbert 490 

Clark  V.  Hallock 4.->5 

Clark  V.  flarwoud 39,49,  iM3 

Clark  V.  II.. Idrldge    71 

Clark  V.  Hutrhcs 570 

Cliirk  V.  M.  rcliants"  Bank 457,  843 

Clark  V.  Miller ?!l(; 

Clark  V.  Cnderwood 3i5K 

Clark  V.  Van  Duzen 7;iO 

Clark  V.  Went Jni) 

Clarke  v.  Anicler  XJO 

Clarke  V.  ("Ity 'if  I>)ckport    ;fcJ7 

Clarke  v.  Clarke 3:i.j.  .152,  497,  505,  771 

Clarke  V.  O.indall ISl 

Clarke  v.  Cunningham 47ii 


PAGK. 

Clarke  ".  Freeman  .   446 

Clarke  v.  Meigs 703 

Ciasoa  V.  Corley 833 

Ci.ay  V.  Oxford 103 

Cl3mv.  Newcii./ie,  etc 68;j 

Gierke  V.Chi. i 393 

Cleveland  V.  BurrlU 739 

Cleveland  V.  Spier 388,  38%  ""W 

Clift  V.  Collins 859 

Clinton  V.  Brown 431 

Clinton  V.Eddy 613,715,830 

Clothier  V.  Webster 383 

Cloughv.  Hoffman   393 

Clough  V.  M array 380,  563,  663,  684 

Cloyes  V.  Thayer 559 

Clute  V.  Boal 411,  531 

Coakley  v.  Chamberlain 373 

Coan  V.  Osgood 563 

Coats  V.  Darby  453 

Cobb  V.  Dows 143,  381 

Cobb  V.  Dunkin 161 

Cobb  -v.  Frazee 607,  723,  734,  735,  760 

Cobb  V.  Hatfield 669,  700 

Cobb  V.  Harmon 676 

Cobb  V.  Thornton 233 

Cochran  v.  Webb  26 

Cochran  v.  Dinsmore 86<i 

Cock  V.  Coxwell 56t» 

Cocker  v.  Cowper 479 

Cockle  V.  L.  &  S.  E.  Ry 386 

Cockrill  V.  Sparkes 681 

Cocks  v.Ra  if ord 831,  833 

Codd  V.  Rathbone 96 

Coffin  V.  Reynolds 773 

Coggs  V.  Bernard 303 

Coghlan  V.  Dinsmore 331 

Coit  V.  Beard 673 

Coit  V.  Braunsdorf 416 

Coltv.Coit 41,  601 

Coit  V.  McReynolds 316 

Coitv.Planer 416,417 

Coit  V.  Stewart 633 

Colburn  v.  Woodworth. 485 

Colchester  v.  Brooks 393 

Colclough  V.  Bayse 481 

Colclough  V.  Evans 289 

Cole  V.  Clark 458 

Cole  V.Fisher 396 

Cole  V.  Jessup 260,  393 

Cole  V.  Reynolds 40,111,403 

Cole  V.Sims 317 

Col  egrave  V.  Breed 101 

Colegrave  v.  Tallman 441 

Coleman  v.  Bean 463,  674 

Coles  V.  Bowne 5.55 

Coles  V.  Park 343 

Colie  V.  Tift 791 

Collins  V.  Bushnell 524 

(Collins  v.Coghill 250,684,  771 

Collins  V.  Collins 859 

Collins  V.  Evans 88^5 

Collins  V.  Lemasters 402 

Collins  V.  Swan 541,653,7.% 

Collins  V.  Vanderbilt ..  -iST 

Collyer  V.  Collins ...  4S8.  493 

Coltv.Kemp 630 

Colt  V.  La.'snler HO 

Colton  V.  Jones 240,  264.  448,  749,  753 

Ciiltiin  V.  Ross «75 

i  Colvin  V.  Burnet flS,  4.40 

I  Colwell  V.  New  York  &  E.  R.  R.  Co i:i3 

1  Comb.-i  V.  Bateraan 168,663 

Cumogys  V.  Vassee 67.    68 

Commercial,-  etc.,  v.  Varnun-. 887 

Commercial  Bank  v.  City  of  Rochester,  184 
I  466,  467 

I  Commerr;lal  Bank  v.  Norton 16U 

Commercial  Hank  v.  Stewart 064 

Commercial  Bank  v.  Ten  Eyck Tril 

(•i,Mi'>!orcial  Bank  V.  Union  U'Uik ifiiG 


TABLE   OF   CASES   CITED. 


XV 


Commisi?ioners  7.  Loughnan 664 

CoinmissionTS  V.  Pilots 393 

Commissioners  V.  Vaadirbilu  ..     ...    393 

Commonwealth  v.  Murra. 'WO  , 

Compton  V.  Greene 631,  839 

Comstock  V.  Hallock 714,  (35 

Conaughty  ■,.  Nichols 193,  251,  253,  843 

Conde  v.  Nelson  et  al.  133 

Conde  v.  Shepard 1^ 

Conflans,  etc.,  v.  Parker 368 

Conger  V.  Johnson 811 

Conger  v.  Van  Aernum 398,  399,  488 

Congregation,  etc.,  v.  Halllday.. 405 

Congress,  etc.,  V.  High  Kock,  etc 446 

Conkliu  V.  Conklin 400 

Conklin  V.  Field 191,379 

Conklin  V.  Furman 683 

Conklingv.  Gandall 173,  174,  175,  177 

Conkling  v.  King 663 

Conklin  v.  Thompson 390 

Conklin  v.  Vandervoort 546,  648 

Conley  V.  Palmer 139 

Connah  V.  Hale 453,458 

Connavan  V.  Conklin 365 

Connecticut  Mut.  Ins.  Co.  v.  Cleveland 

etc.,  R.  R.  Co 168 

Connor  v.  Williams.: 407 

Connoss  v.  Meir 798 

Connoughty  v.  Nichols  160 

Conro  V.  Port.  H<ijiry  Iron  Oo 85 

Considme  V.  Consioine 874 

Cookv.  ffenses  191 

Cook  V.  Clavsworth 360 

Cookr.  Cook 439 

Cook  V.  Ferrall 394 

Cook  V.  Hopper 399 

Ck)o1c  v.  Kel le V 406,  445,  ''03 

Cook  V.  IJtchtield 744 

Cook  V.  Nathan 34-1,377 

Cook  V.  Rawdon 58 

Cook  V.  l!itt«r 399 

Cook  V.  W;irring. 385,  448 

Cooke  V. 438 

Cookhay  v.  Woodward 39,j 

Cookingham  v.  Lasher 661 

Coolidge  V,  Paris 54 

Coon  V.  Keed 434 

Coope  V.  i'ri  iwles 33(5 

Cooper  V.  Chitty 455 

Cooper  V,  CI ason 733 

Coopoi'  V.  Barber    576 

Cooper  V.  Uunchin 347 

Cooper  V .  Newland 333 

Cooperv.  Phibbs 379 

Cope  V.  Rowlands 676 

Cophy  Y.  Rose 453 

Coppin  V.  Coppin 366 

Corbin  v.  George 364 

Cordier  v.  Cordier 288 

Corn  Ex.  Bank  v.  Babcock 371 

Cornell  V.  Dakin 563,656 

Cornell  v.  Prescott 4(')8 

Comes  V.  Mlnot 337 

Corning  V.  Corning....  274,586,786,788,  829 

833 

Corning  V.  Greene 97 

Corning  V.  Haight 534,570 

Corning  v.  Lewis 371,  37'i 

t"!orniog-:.  Smith 335 

Corning  V.  Troy,  etc 353,  479 

Cornish  V.  Gest... 401 

Cornwell  v.  Met.  etc 384 

Corporation,  etc.,  v.  Attorney-General,  395 

Corrigan  v.  Union,  etc 37.5,  4.51 

Corwin  v.  Corwin 515,  534,  563 

Corwin  v.  Daly 447 

Corwin  V.  Freeland 251 

Cory  V.  Cory 360 

8ory  V.  Long 403 
oster  V.  Isaacs 373 


PAQE. 

Ooster  V.  Mayor,  etc 449 

Costigan  V.  Mohawk 485 

Ootesv.Smith 357 

Ootreal  V.  Talmadge 800,  844 

Cott  V.  Lewiston 477 

Couch  V.  Delaplaino 67,    70 

Coulinn  v.  Coxe 483 

Coulter's  Case 616 

Coural  V.  Young 876 

Coursen  v.  Hamlin 621 

Courtney  v.  Baker 483 

Courtnev  v.  Doyle 169 

Cousim.  V.  Paddon         434 

Coustanv  Chapman 435,903 

Covert  V.  Gray  .  . .    233,  397 

Cowden  v.  Wright 398 

Cowdry  V.  Carpenter 349 

Cowel  V.  Sikes 441 

Cowenhoven  v.  City  of  Brooklyn  ..337,  450 

Cowley  v.  Poulton 103 

Cox  V.  Burbridge 396 

Coxv.Clift " 442 

Cox  V.  Robinson 701 

Coxv.  Smith 236,  338,  483 

Coykendall  v.  Eaton 354 

Cozine  v.  Graham 555 

Craig  V.  Parkis 344 

Craig  V.  Rochester 409,  443 

Craigv.  Ward 88,118,  193 

Craig  V.Wells 479 

Grain  v.  Petrie b37,  738 

Cram  v.  Dresser 637 

Cramer  V.  Benton 693 

Crandallv.  Beach... 15T 

Crane  v.  Sawyer 238 

Crary  v.  Goodman 24,  25,  26,  630,  791 

Crary  v.  Smith 533 

Craw  V.  Eichinger 669 

Crawford  v.  The  William  Penn 838 

Creed  v.  Hartman 388 

Cremer  V.  Higginson 441 

Crippen  v.  Hudson 128 

Crippen  V.  Morss 898,903 

Crocker  v.  Marine,  etc 793 

Crockpay  V.  Martin 701 

Croftv.Day 446 

Crofts  V.  A  llman    112 

Croghan  v.  Livingston 58,  23o 

Cromwell  V.  Hewett 135,  328 

Crooke  v.  Andrews 310,443 

Crooks  V.  Moore 343 

Cropper  v.  Cook 319 

Cropsey  v.  Sweeney 484 

Crosby  V.  Wood 168,  668 

Cross  V.  Beard 324 

Crouch  V.  l^rker 320 

Crowe  V.  Aiken 314 

Crowfoot  V.  London,  etc 488 

Crowhurst  v.  Laverach 426 

Crowthers  V.  Ramsbottom 677 

CrutwelL"v.  Lye 341 

Cruvt  v.  Phillips 4&i 

Cudlipp  V.  Whipple -oVo  ^^ 

Cuff  V.  Dorland  273,  697 

Cullen  V.  Toles    514 

Cumberland,  etc.,  V.  Hoffman,  etc SK 

Cummins  v.  Barkalow 5w 

Cummings  v.  Barrett •  •  ■  -  480 

Cummings  v.  Brown 437,  683 

Cummings  v.  Morris 75,  620 

Cummings  v.  Vorce 215 

Currie  v.  Baldwin • .  •  •  778 

Currie  v.  White 404,  685,  701 

Curtis  V.  Brook 470 

Curtis  V .  Bryan 415,  447,  704 

Curtis  V.  Fay •    4^7 

Curtis  V.  Fox 8^.  845 

Curtis  V.  Leavitt 38d 

Curtis  v.  U.H-l!ester,  etc.,  R.  K.  Co 320 

Curtis  v.  Tyler 4iJ8 


XVI 


TABLE   OF   CASES   CITED. 


PAGE. 

CiifthinBham  v.  Phillips 2^0 

Cushni;in  V.  Gnri 3(16 

Cusson  V.  WhiiUon 819,  820 

Custis  V.  MiLsten 43« 

Cutler  V.  WriKlit 778 

CuttiiiK  v.Seabixry 223,  397 

Cuyler  v.  BoKe.D 540 

Cuvler  V.  Coates.  835 

Cythe  V.  Lafouutaiu 5fti,  588 

Diibney  v.  Greely 772 

Dain  v.  Wyckoff 425 

Dakia  V.  Dunning 701 

Dalbvv.  Fallen 435 

Dalton  V.  Bethlehain 489 

Daly  V.  Palmer 314 

Dane  V.  Mallorv 864 

Daniels  v.  Allahtic,  etc 490 

Dann  v.  Baker 288 

Dausville,  etc.,  V.  Welch 4;57 

Dan  7er.-;  V.  Dorrity 400 

Darilnjrton  V.  Mayor,  etc  .  563 

Darlington  V.  Painter 478 

Darnell  v.  . Morehouse 6(52,  687 

Darnell  V.  Th()?uas 688 

Darraw  v.  Miller ft47,  650,  651,  652,  726 

Dauihy  V.  Bennett 412 

Daui-liy  V.  Silliiuan 308 

Dauel  V.  Spenoe 842 

Davayne  v.  Noble 122 

Davenport  v.  Kucknian 337 

Dayenport  v.  Simpson 483 

Davis  V.  Orove 402 

Davidson  V.  Nichols 391 

Davies  V.  Davles    670 

Davles  v.  Dodd 369 

Davies  v.  Jenkins 299,  452 

Davies  V.  Skid  more Iffij 

Davies  v.  Snead 6!46 

Davis  V.  Belli  is 467 

Davis  V.  Uuffle 99,  412 

IVivis  V.  Duke,  etc 408.  474 

Davis  V.  Garr    828,  &33 

Davis  V.  Goodenow 398,  489 

Davis  V.  Grove 40|J 

Davis  V.  Hed:;c3 695 

Davis  V.  London,  etc gSO 

Davis  V.  Lovell 483 

Davis  V.  Mapes fxiO 

Davie  v.  Mayor,  etc 88,  443 

Davis  V.  Morris 141,  274,  416 

Davis  V.  Muneey 479 

Davis  V.  Munson 418 

Davis  V.  Newk irk 453 

Davis  V.  O'Hara '.'..[  303 

Davis  V.  Parker ".'.  434 

Davis  V.  Peck 4O3 

Davis  V.  I'oitcr 281,  536,"  646,  649 

Davis  V.  Kchcrmerhorn 8:i7,  839 

Davis  v.  t2heplierd... 433 

Davis  V.  Spencer '       '   '^"     93 

Davis  V.  Taleott '.'  . . .'  319 

Davis  V.  Thomas ' '     "  4;i9 

Davison  v.  Powell .'."  155 

Dawklns  v.  Sappinston .     "  490 

Dawkins  v.  Pawlet..- 678 

Uawson  V.  Chalineley 871 

Dawson  V.  Chamnev .3.54 

Dawson  V.  McDonald '"  697 

Day  V.   B.usrtett '"  3>3 

Day  V.  Lemun '.'.'.'.■.■.".■.■.■.■.■.■.■.  £'(5 

Day  V.  Po„l j(,,] 

Deacon  V.  Grldley Ifi9 

Do  Agroda  V.  Mantel r'l'  1« 

Dean  v.  Kl  rl  ri  d  ko  . . . .  ' '  '  'iM 

Doan  V.  T.iylor ■..■.■..■.■.■.' ■(•,]', 

Dfare  V.  SiMilten '"  ,•{(-' 

Defv  V.  Short '4>8 

Debalx  V.  I^'hlnd 2i99   83:j 

Decker  v.  Anderson .'. . .'.'  ..'.'.'.  "  . .'  464 


PAGE. 

Deckerv.  Hassell 485 

Decker  v.  Morton 670 

De  Cormas  V.  Prost 858 

Dederick  V.  Hoysradu 636 

Defl};anerie  V.  Young 427 

De  Forest  v.  Baker 648,  653,  654,  705 

Degg  V.  Midland 375 

De  Graw  V.  Elmore 877 

De  La  Croix  V.  Bulkley 380 

Delafield  V.  De  Graw 425,  026 

DelaQeld  v.  Kinney 96 

Delamater  v.  Bush 867 

Delancey  v.  Ganone 225,  461 

Delano  v.  RavFson 633 

Delaplaine  V.  Bergen 100 

Delavan  V.  Duncan 894 

Delaware  Bank  v.  Jarvis 470 

Delaware,  etc.,  v.  Torrey 903 

Delazillo  V.  Levy 618 

Domain  villev.  Mann 416 

Demarest  v.  Williard 67 

Demattos  v.  Gibson 871 

Deming  V.  Chapman 353 

Demingv.  Keep 630 

Den  V.  Johnson 335 

Denham  V.  Stilwell 749 

Denman  V.  Prince 477,  833 

Dennehey  v.  Woodsum 370 

Dennis  V.  LeClerc 314 

Dennis  v.  Ryan 876 

Dennis  V.  Snell .  242,  330,  563,  671 

Dennison  v.  Dennison 513,  .545 

Denny  V.  Hancock 697 

Denton  V.  Peters 526 

Denunon  V.  President,  etc 693 

Depew  V.  Keyser 424 

DePolv.  Solke 353 

Depuyv.  Strong 745,  771 

Depuyster  v.  Wheeler 844 

De  Bidder  v.  Schemerhorn....  122,  135,  145 

De  Koo  v.  Foster 351 

De.siarts  V.  Leggett 368,  703 

Deshan  v.  Porter 479 

Desmond  V.  Rice 368 

DeEspinosav.  Gregory 863 

Devendorf  v.  Beardsley 564 

Devlin  V.  Bavins 713 

Devlin  V.  Brady 349 

Dewey  v.  Burdwell 450,  704 

Dewev  v.  Field 291 

Dewev  v.  Hoag 206,  638 

De  WUt  V.  Buchanan 730,  736 

De  Witt  V.  Chandler 97 

De  VVitt  V.Swift 756,766,  767 

De  Witt  V.  Walton 293 

De  Wolf  V.  Rebaud 500 

Dexheimer  v.  Gautier 842 

Dexter  v.  Broat 672,  703 

Dexter  v.  Clark 673 

Dexterv.  Norton 694 

Diefendorff  v.  Gage 561 

Diefendorf  v.  Trustees,  etc 437 

Diblee  v.  Corbett 187,  446 

Dickens  v.  New  York  Cent.  R.  R.  Co...  150 

Dickinson  v.  Winchester 399 

Dickson  V.  Kimball 524 

Dickson  v.  McCoy 296,  390 

Dieiuiy  v.  Hancock 379 

DigbyV.  Fitzherbert 233 

Dillaye  V.Wilson 126,  131 

Dillon  V.  Anderson 698 

Dimes  v.  Grand,  etc 4S8 

Dimon,The 261 

Dininnv  v.  Fay 70 

Diniiiing  v.  New  York,  etc.,  R.  R.  Co...  888 

Directors  V.  Kisch 684 

Disbrow  v.  Folger 400 

Di.sbrow  v.  Ten  Broeck 303 

Dishard  V.  Walbrldge 631 

Ditchburn  V.  Spracklia 146 


TABLE   OF   CASES   CITED. 


XVll 


PAGE. 

Duncan  V.  Luntley 335 

Duncan  V.  Stanton 623 

Duncan  v.  Topliam 410 

Dixon.  etc:v;Guggenheimer. 446    g^^jJ^-^p^^jl^C^^^P^^^^^  ^l 


Divine  Pastoria,  The 260,  261 

Dixonv.Bell SS., 

Dixon  V.  Bu3k f;^ 


Dixon  V.  Nuttal ^~1 

Dobell  V.  Stevens •  •  •   •  •  ■  ■  fi\ 

Dobson  V.  Pearce 58V,  588,  631 

Dodge  v.Cun-y 788,793 

Dodge  V.  Favre 3!« 

Dodge  V.  National,  etc 3.Ji 

Dodge  V.  New  Yorli,  etc wo 

Dodge  V.  Woolsey 109 

Doe  V.  ButcLer 84^ 

Doelnerv.  Tynan 39o 

Dole  v.  Manley •  ■  ■  •  •  •  -  •  158 

Dolclier  v.  Frv ITO,  350,  668 

Dolevin  v.  Wilder 573,  575,  576,  679,  771 

Dollner  v.  Gibson. .  184, 185, 186, 194, 195,  232 

Doloret  V.  Rothschild 429 

Dolphen  v.  Aylward old 

Dolsen  V.  Arnold  663 

Donahue  v.  Henry 457 

Donovan  v.  Finn ••■■  411 

Doolittle  V.  Diiiinny 461,  463 

Doolittle  V.  Supervisors    ^"^'  1^^ 

Doremus  v.  Lewis 801 

Dorlin  v.  City  of  Brooklyn  ■■■■■■y  ■■■    387 

Dorman  v.  Kellam 151, 15o,  264,  7o3 

Dorman  V.  Long 811 

Dorn  V.  Fox 89_. 

Dorr  V.  Harrahan 352 

Dorwin  v.  Potter 69o 

Doty  V.  Wilson 66o 

Dougan  v.  Champlain,  etc 8i3 

Dougherty  v.  Bunting 345 

Doughty  V.  Devlin 255,  i6i 

Douglass  V.  Rowland 166, 168,  673 


Dunham  V.  Mann 304 

Dunham  V.  Powers 69b 

Dunham  v.  Troy,  etc 4oo 

Dunkam  v.  Stuyvesant <04 

Dunlop  V.  Glidden 483 

Dunlop  V.  Higgins 319 

Dunlop  V.  Hunting -^o 

Dunlop  V.  Lambert •  •  •  8o9 

Dunlop  V.  Snyder 508,  561 

Dunn  V.  Calcraft 33b 

Dunnage  V.  White 69i 

Duniiellv.  Kettlekas 430 

Dunning  v.  Ocean  National,  etc 875 

Duppa  V.  Mayo VV.V  tiS 

Durant  v.  Hankerson 5bl,  78i 

Durant  v.  Gardner -  •  ;,•  26j 

Durant  v.  Einstein ■*"''  22* 

Durell  V.  Pritchard 3o3 

Durgin  v.  Ireland 207 

Du  Khone, v. .  ^ •  ■  "90 

Durkee  v.  Saratoga  R.  R.  Co...  lal,  loO,  ito 

Durkee  v.  Mott 48o 

Durkln  v.  City  of  Troy o91 

Durraan  V.  Killam 609 

Dustan  v.  McAndrew 342,406,445,  486 

487,  488,  703 

Dutcher  v.  Slack 826 

Dutchess  V.  Harding 891 

Duttan  V.  Marsh 292 

Dwight  V.  Webster 70^ 

Dyas  V.  Cruise 433 

Dyckman  v.  Allen 146 


Douglass  V.  Patrick.  ..■■.■.. 702  i  Dyckman  v.  Mayor    -03 

Dovan  v.  Dinsmore 515,  605  !  Dyckman  v.  Valiente ooq   I^ 


Do^Tnes  v.  Phoenix  Bank 322,  661 

Downs  V.  McGlynn 418 

Dows  V.  Chicago ••.■  443 

Dowsv.  Green 147,  834 

Dows  V.  Hotchkiss..  36,  39,  42,  187,  203,  524 

Doyle  V.  Mubren 561 

Doyleyv.  White 347 

Drake  V.  Beckham 72 

Drake  v.  Cockroft 523,  536,  627 

Drake  v.  Drake 481 

Draper  V.Gordon 636 

Draper  v.  Hitt 662 

Draper  V.  Stouvenal 564 

Dresser  V.  Ainsworth 473 

Dresser  v.  Barton 564,  617 

Dresser  v.  Dresser 444 

Dresser  V.  Stansfleld 520,  555 

Drew  V.  Coulton 469 

Drew  V.  Sixth  Av.  R.  R.  Co 320 

Dreyer  V.  Rauch 30ij 

Driscoll  V.  Newark,  etc 37o,  453 

Drlscoll  V.  Rosendale 679 

Drought  V.  Curtiss 288,658 

Drunimond  v.  Hasson 795 

Drury  V.  Dennis 346 

Dubois  V.  Allen 397 

Dubois  V.  Weaver 396,  451 

Dudley  V.  Hawley 4.58,  460 

Dudley  v.  Mayhew 314 

Duell  V.  Cudlipp 69,    70 

Duel  V.Spencer 844 

Duff  V.  Budd 307 

Duffy  V.  Duffy 489 

Duffy  V.  Duncan 633 

Duffy  V.  Harrison 399 

Duffy  V.  O'Donovan 867 

Duquid  V.  Edwards 843 

Duke  of  Ohandos  v.  Talbot 53 

Duke,  etc.,  v.  Metropolitan,  etc  392 

Dumont  V.  Smith 448,  450 

Duncan  v.  Berlin 377 


Dye  V.Kerr 399,  489 

Dvett  V.  North  Am.,  etc 54 

Eadie  V.  Shannon •    670 

Eagleston  v.  Son •  •  lo7,  469 

Eames  v.  Prentice 448 

Eaines  v.  Sweetser 347 

Earl  V.Camp  863,864 

Earl  of  Falmouth  v.  Thomas 674 

Easley  V.  Crawford w"--; slo 

Eastern  Plank  Road  Co.  t.  Vaughan  ..  168 

Eaton  V.Alger •••■  168 

Eaton  V.  Balcom 499,  663 

Eaton  V.  Benton 489 

Eavestaff  V.  Russell 81a 

Eckstein  V.  Prank f>l 

Edelstein  V.  Vick 447 

Edick  V.  Crim 4(3 

Edsall  V.  Brooks 215,  428  678,  679 

Edson  V.  Dillaye 523,  546,  .5,50,  663 

Edwards  v.  Burt 338,  4lt^ 

Edwards  V.  Carr 3U*j 

Edwards  v.  demons .  ■  • .  •  •  •  •  •  •  •  x>~, 

Edwards  v.  Lent 535,  o36,  538,  .541    .544 

Egberts  v.  Wood o=,i-  o.?o'  Ita 

Egert  v.  Wicker 828,  bo3,  83» 

Egginton's  Case 468 

Ehle  V.  Chittenango  Bank ■  ■  ■  ■  sb6 

Elilev.Haller 143,  289 

Ehle  V.  .Tudson •■••  165 

Ehle  V.  Moyer - . .•  ■  •  •   •  •  •  100-  101 

Eighth  National  Bank  V.  Fitch 88o 

Elder  V.  Bogardus 399 

Eldridge  v.  Idams  ...  74,  75,  99, 190,  200,  453 

Eldridge  v.  Mather •  ■  •  ■  669 

Eley  V.  Broughton ............  100,  InT 

Eiizaliethport,  etc.,  v.  Campbeil . . .     ..  693 
Ellicottville,  etc.,  v.  Buffalo,  etc. .    409,  44.3 

Elliot  V.  Failey 303,  407 

Elliott  V.  Hart  et  al ]oJ 

Elliot  V.  Northeastern 44" 


XVlll 


TABLE   OF   CASES   CITED. 


PAGE.  I 

Ellis  V.  Lersner 130,  309' 

Ellis  V.  Willaid 4{S5 

Ellsworth  V.  Brewer 3f<3  ! 

Ellsworth  V.  Lockwood    412,  439,  4+0 

Elwell  V.  Chamberlain 3:^6 

Elwood  V.  Diefendorf 438,  468 

Elvv.Cu.'k i^ 

Ely  V.  Lowensteln 112,  113,  79:i 

Ely  V.  Mumford 339,  60'.»,  700 

Ely  V.  Xi irton 314,  842 

Ely  V.  Supervisors USB 

Emerson  v.  IJleakly 68 

Emerson  V.  Booth...... 69'  ^i?  | 

Emerson  V.  Spicer 675 

Emery  V.  Fell 203 

Emery  V.  Pease 273 

Emmensv.  Elderton 485 

Emmons  V.  Cairns 70 

Em  I  riertan  V.  Matthews —  471 

Eimil..us,The 261 

Eni.'!:iiid  V.  Davidson 418 

Eni,'l;iiid  v.  Lord  Tredegar 368 

En„'!is  V.  Furniss 112,403 

En.,  V.  Woodwortli 190,  194,  198 

Enc.s  ..  Thomas...  125, 126, 145, 150,  776,  820 

Ensign  V.  Colburn 475 

En.sit;[i  v.  Shearman  230 

Episcopal  Cliuroh  v.  Varian 292 

Erlien  V.  Lorillard 305 

Erickson  v.  Coinpton 91 

Erie,  etc.,  v.  Patrick 497 

Ernst  V.  Kunkle 623 

Erwin  v.  Downs 470,  471 

Esdaile  V.  La  Nauze 3-35 

Esniay  v.  Faiiniiit: 302,  459 

Esmond  v.  Van  Uenscoten  ....  240,  590,  593 

Esselstyne  v.  Weeks 206 

Estiiie  of  Dewees 664 

Evans  v.  Hagshaw 400 

Evat)s  V.  IJrimbridge 698 

Evans  v.  Harries 346,  3'.'fl 

Evans  V.  Stokes 83 

Evans  v.  Walton 425 

Ewiiig  v.  Glasgow  Comm'rs 888 

Exfliange  Hank  v.  Kice 858 

Executors  of  Keese  v.  Fullerton...  828,  829 

Ex  parte  Greeiiway 369 

Ex  parte  Sifford 865 

Eyres  V.  Sedgwick 483 

723 

447 
490 
69.3 
195 
316 
373  i 
358 
294  1 
361  I 
400; 
58  1 
473  1 
697  1 
734  1 

419  1 
138! 
342  1 
360 

8:30 

420  ' 
745  ; 
802  i 
191' 

4:u 

169  I 

444 

44.3 

819  I 
449 


Fabbricotte  V.  Launitz....  350,  593,639, 

Faber  v.  Faber 

Fahy  v.  North 

Fageii  V.  Davidson 

Fairbanks  v.  Uloomfleld 181, 

Fair!)iiMk3  v.  Corljes 

Fairbanks  v.  Motliersell  .  

Fairbrotlier  v.  Pratent 

Fairchlld  v.  hentley 

Fa:r<:liilil  v.  Durand 

Fairiiiount  V.  Stutler 

Fairwi-atlier  v.  Satterly  .  

Fak  e  V.  Sm  i  th 330,  379.  436,  470, 

Falcke  v.  Gray  

Falroner  v.  .^leye^ 

Falli.k  V.  Barber 

Fallon  v.  Mi-t-'unn 

Fancher  v.  Goodman 

Fargo  V.  Arthur 

Farish  v.  Corlies 

Farniiin  v.  Parker 

FarnuT  v.  Farmer 

Farmers'  I><>an.  etc.,  v.  Seymour...  591, 

Fanners,  etc.,  H'lik  v.  Joslyn 

Farnham  V.  Mallory 

Farinwr»rih  V.  Clark 

Furr  V.  I'earaon 403, 

Fan- v.  Smith 

Fnmiiil  V.  Herbeson  

Farrarid  v.  Marshall 


PA3E. 

Farrant  V.  Barnes 388 

Farrar  V.  Beswiok 444 

Favrar  V.  Chautfetete 453 

Farringtou  v.  Bank . .  698 

Fash  V.  Kavanagh .  365 

Fasnacht  v.  Stehn 242,  250,  G48,  653 

Fa-sset  v.  Tahnadge 833 

Fattrech  V.  McKay 653 

Faulkner  V.  Erie 374 

Fauncev.  Burk 487 

Fawcett  V.  Laurie 83 

Fay  V.  Grimstead £"»,  511,  559,  569 

Fay  V.  Halloran 416 

Fayv.ONeill 370 

FayJev.Bird 303 

Feohter  V.  Montgomery 3.53 

Feeny  v.  Peoples 315 

Fell  V.  Beyer 505,  561,  565,  787 

Fellows  V.  Fellows 87,106 

Fellows  V.  Gwydr 337 

Fells  V.  Vestvall 193,  204,  840 

Felthouse  V.  Brindley 457 

Fennv.  Craig 81 

Fennings  v.  Grenville 364 

Ferguson  v.  Hamilton 470 

Ferguson  V.  Norman. 676 

Fergu.son  v.  Metropolitan,  etc 340 

Fern  v.  Vanderbilt 150,  151,  594 

Fernery.  Williams 180,407 

Ferreirav.  Depew 623 

Ferrin  V.  Myrick 143,  328,  665 

Ferris  v.  Crawford 366 

Fetridge  V.  Merchant 447 

Fetridge  v.  V\'ells 417 

Field  V.  Boland 893 

Field  V.  Hawkhurst a33 

Field  V.  Maghee 72,  115 

Field  V.  Mayor  of  New  York....  67,  71,  787 

Field  V.  Morse 351,  824 

Field  V.  Stone  47,49,251 

Field  V.  Svms 842,843 

Field  V.  Woods 697 

Fielden  v.  Carrelli 776 

Fielden  V.  Lahens 119,441 

Fiery  v.  Emmet 878,  M^o 

Filer  V.  New  Vork  Cent.  R.  R  Co 880 

Fillmore  V.  Horton 461 

Finch  V.  Parker 888 

Finch  V.  Pindon  669 

Finch  V.  Walker 885 

Finnertyv.  Barker 208 

First  National  Bank  v.  Ballon 875 

Fischel  V.  Scott 423 

Fish  V.  Ferris .  460 

Fishellv.Uell 376 

Fisher  V.  Beckwith 865 

Msher  V.  Clark 448 

Fisk  V.  Howland 94 

Fitch  V.  Bigelow 283,  645 

Fitch  V.  Carpenter ....  425 

Fitch  V.  Coiu'rs,  etc.,  of  Kirtland 209 

Fitch  V.  Gardiniere 437 

Fitch  V.  Siiedikar 422 

Fitch  V.  Toulinar 887 

Fitzgerald  v.  Burrill 886 

Fitzgerald  V.  RedQeld 428,  5S0 

Fitzgerald  V.  Vicars 893 

Fitzhugh  V.  Wiman 74 

Fitziolin  V.  McKinder 338 

Flamiuer  v.  Kline 517,  523,  546,  648,  653 

Flanagan  v.  Demarest 405 

Flanagan  v.  Tinen 54,60,  346 

Fleet  V.  Dorland 236 

Fleet  V.  Hellenksmp 391 

Fleetwood  v.  City  of  New  York. . .  466,  467 

Fleming  V.  Xewton 366,  407 

Fleury  v.  Brown 517,  M%  648 

Fleury  v.  i{oget...  517,  525,  539,  >UU  570,  648 

653 
Fllnii  V.  Powers 273 


TABLE   OF   CASES   CITED. 


T^X 


Flood  V  Reynolds 53;-, 

t"o~a  V.  Carbean g<i4. 

Fiorei-€v.  Hopkins 133,233,  5^8 

Fioyd  V .  Dearborn 23     35 

Flynn  v.  Bailey I43 

riynii  V.  Hudson  River  R.  R.  Co '..  159 

riyiui  V.  Powers 677 

Fogal  V.  Pirro .'.' 907    412 

Foirerty  v.  Jordan .'075 

Fogg:  V.  Nahant '  39:> 

Fol-.md  V.  Johnson "'.'.'  0S4 

Foley  V.  Hill '  o^l 

Follett  V.  Jewett  24»(  573 

yolsaiu  V.  Marsh 407 

Fonda  v.  Sase ....'.  408 

Fonda  v.  Van  Home 453 

V^oote  V.  Buchanan . '  447 

Foote  V.  Lathrop .'."    53 

Foote  V.  Morris ".'...'     (X) 

Foote  V.  West ...'..'..'.'.  7(fc 

Forbes  v.  Shattuck .....".         443 

Forbes  v.  Waller. .  '.'288   51ij 

Ford  V.Cobb  '  4AJ() 

fordv.Ford ■..■839,830 

tord  V.Keith 383 

Ford  V.  M  attice '.'  'i'g'o   ir,! 

Ford  V.  Monroe .'  397 

Ford  V.  Townsend  4t;i 

Pord  V.  Williams 399,  453,  455 

For'ihain  v.  London,  etc 387 

Foreman  v.  Mayor ' '.  388 

Fork  V.  Koberts ......      564 

Forrest  v.  Forrest '.".  60,  837 

Forrest  v.  Mayor .'....'  4tj(; 

T'orsyth  V.  Edmiston .'     143 

Forsyth  V.  Wells \  4H0 

Fort  V.  Gooding 399 

Fort  Plain,  etc.,  V.  Smith '.',.'.  34.5 

Fosgate  v.  Herkimer,  etc.,  Co 131 

Foster  v.  Essex,  etc 303 

Fostex  V.  Hazen 20'8,  363 

Fos'.er  v.  Magee 443   444 

Fcsterv.  Milliner .'  637 

Foster  v.  Van  Wyck .'..'.  441 

Foster  v.  Wf)od 03   361 

Foiilger  V.  Newcomb '  428 

Fowler  v.  Abrams '  ijis,'  231 

Fowler  v.  Bowen 428,  695 

Fowler  v.  Clearwater 050 

Fowler  v.  Hollins 458 

Fov.'ler  v.  New  York,  etc .'.  355 

Fowler  v.  Regney \  4(i5 

Fowls  v.  Spear '■898 

Foxv.Hunt    547,  786 

Foxcraft  v.  Lasey 428 

Foy  v.  Foy 37?j 

Foy  v.  Troy  &  Boston  R.  R.  Co'.". '.'.'.■.'  66,    70 

Frame  v.  Dawson 434 

Francis  v.  Cockrell 388 

Francis  v.  Cry  well 690 

Frank  v.  Levie 157 

Franklin  v.  Heiser '.'.'..'.'.'.  430 

Franklin  v.  Keeler .'.....'.'.  266 

Eraser  V.  Harbeck 4'>3 

Frazer  v.  Freeman '. 375 

Frear  V.  Hardenburgh 491 

Frederifjks  V.  Mayer 353 

Freeland  v.  Van  Campen 662!  687 

Freeman  v.  Atlantic  Mut.  Ins.  Co..         391 

Freeman  ?.  City  of  Boston 419 

Freenri.i  v.  Frank  . 99,  100 


PA  OB. 

French  V.  Andrade u^ 

French  v.  Carhart '."*'.  479 

French  V.  Vining ""  39X 

French  v.  White .' " .'    73 

Freto  V.  Brown .'.'..'.'.'.".'.."  400 

Frey  v.  Johnson  !!!.'!.!  304 

Freyberg  v.  Pelerin '. "    ,5^ 

Frickett  v.  Brice "    304 

Fried  v.  New  York  Cent.  R.  R.  Co. . . ! ! '    66 

Fried  v.  Royal  Ins.  Co .'  70:3 

Frink  V.  Hamden,  etc 3,55 

Frink  v.  Morrison ',[  103 

Frost  V.  Duncan '  "  450 

Fry  V.  Bennett  . .  37,  40,  209,  310,  .536,  573,  579 

581,  eirr,  733, 733, 798, 819 

Fryatt  V.  Sullivan,  etc 460 

Fulham  v.  McCarthy 8'4,    88 

Fuller  V.  Fullerton 73,    96 

Fuller  V.  Van  Geeson 405 

Fulton  V.  Gilmore 289 

Fulton  Fire  Ins.  Co.  v.  Baldwin 70,  386 

563,  766,  770,  773 

Furniss  v.  Brown 138, 143,  835,  836 

Furnliss  v.  Ferguson 474 

Gaffney  V.  Chapman 663 

Gage  V.  Angell 615,  619,  637,  638 

Gage  v.  Brewster 413 

Galbraith  V.  Pullertcn ...697 

Gale  V.  Archer .  431 

Gale  V.  Bates '  316 

Gale  V.  Miller 403 

Gallagher  v.  Mason .   ........  7u3 

Gallagher  V.  White 31.4 

Galland  v.  Galland 293 

Gallatin  v.  Erwin 564 

Gammon  v.  Plaisted 870 

Gardner  v.  Adams 65 

Gardner  v.  Barney 463 

Gardner  v.  Clark 496,  500 

Gardner  v.  Heart 4,^^),  474 

Gardner  v.  O  gden 143,  739 

Gardner  V.  Williams 367 

Garlinghouse  v.  Jacobs 311 

Garner  v.  Derring 476 

Garr  v.  Bright ]  U4 

Garr  v.  Martin '.'...'.'.  463 

Garr  v.  Selden '.'..'.'.'.  579 

Garrard  v.  Haddan 334',  673 

Garrison  v.  Carr 159,  I6I 

Garvey  v.  Carey 665 

Garvey  v.  Fowler ...  163, 181,  193,  533 

Garvey  v.  Jarvis 663 

Caspar  v.  Adams 188,  830 

Gates  V.  Bliss 700 

Gates  V.  Davenport 484 

Gates  V.  Lounsbui-y 235,  MtO 

Gates  V.  Smith 465 

Gath  V.  Lees ]  .    394 

Gattorno  v.  Adams MS 

Gauntley  v.  Wheeler 463 

Gautret  v.  Egerton 386 

Gay  V.  Paine 173, 176,  180 

Geere  v.  Dibble 85 

Gehm  V.  Levy 568 

Geiger  et  al.  v.  Harris 49;3 

Geisler  V.  Acosta 333 

Gellatain  V.  Erwin 304 


Freeman  v.  Freeman 


4S0\ 


Freeman  v.  Pulton,  etc '.'.'.['.[]'.'.'[[  855  ,  .,^u.k<.  v 

Freemaji  V.  Jeffries 380  1  Geoi-ge  v 


Freeman  v.  llosher 

Freeman  V.  Schroeder '  ijiif 

Freeman  V.  Young...'. 156,463 

Freer  V.  Stotenbur 45O 

Freesv.Ford ."."."  sm 

Fieeihy  V.  Freethy bl 


General  Mut.  Ins.  Co. 
Genesee  Mut.  Ins.  Co. 

George  v.  McAvoy 

^an  Home 


Benson HO 

Moynihen 535 

544,  605 

283,  833 

71,436,  484 

Getty  V.  Binsse 897 

Getty  V.  Hudson  River  R.  R.  Co . .  27,  31,    49 
^.^^        _  276,758,765,766,832 

G'ibbs  v.  Chase 453 

Gibbs  V.  .Nash 205,  .'),55 

Gibson  v. Toby 663,668 


XX 


TABLE  OF  CASES  CITED, 


PAGE. 

GJesson  v.  Glesson 174,  550,  812,  813 

Gihon  V.  Levy 262,  702 

Gihon  V.  Stanton 312 

Gilbert  V.  Beach 384,  388 

Gilbert  v.  Cram 520 

Gilbert  V.  Newell 58 

Gilbert  v.  Peteler 431,  43.5 

Gilbert  v.  Kourids 160,  551,567,  587 

Gilbert  v.  Showerman 3',I5 

Gilbert  V.  Thompson 448 

Gilbert  v.  Wyiiian 303 

Gilchrist  V.  Comfort 301 

GililitiK  V.  Eyre 370 

Giles  V.  Lyon 27 

Gill  V.  McNamee 472 

Gillespie  V.  Carpenter —  377 

Gillespie  v.  Torrence 588,  622,  636 

Gillett  V.  Borden 863,  888 

Gillett  V.  Campbell 169,  489 

Gillett  V.  Hill 461 

Gillett  V.  Maynard 491 

Gill<-:t  V.  Mood 339 

Gillett  V.  Philips    3:^9 

Gillian  V.  Norton  —  364 

Gillies  V.  Lent 346,372 

Gillii-'an  v.  Mayor,  etc 246,  320,  397 

Gillisv.Shaw 904 

Gillott  V.  Easterbrook 447 

Gillott  V.  Kettle 446 

Gilinartin  V.  Mayor 375 

Gilmore  V.  Hempstead 283 

Ginnun  V.  New  York,  etc 385 

Given  v.  Webb 369 

Gladwell  v.  Stegall 391 

Glea?on  v.  Moen 616,  632 

Glen,  etc.,  v.  Hall 860 

Glenny  v.  Hitcliiiis 184,  186, 199,  76.5 

Glover  V.  London,  etc 409 

Glyn  V.  Caulfleld 366,  409 

Glvnne  v.  Lo(;ke 360 

Gol)l!n  V.  McMuUin 303 

God'ilnsjv.  Mc.Vllister 276 

God  Trey  v.  Kice 874 

Goii irey  v.  Townsend 131 

Goedel  V.  Robinson 649 

Goelet  V.  Cowdrey ...  ,555 

Goelet  V.  Gori 126 

Goelet  V.  .McKinistry 146 

Goir  V.  Ed<.'erton liiO 

Goit  V.  Nat.  Prot.  Ins.  Co 168 

Golden  V.  Littlejohn 854 

Golilennan  V.  Stearns 429 

Goldrich  v.  Ryan 471 

Goldsmith  V.  Mrown 344,  434 

GoJdsniith  V.  IJryant 700 

Goldsmith  V.  Jones 686 

Good  V.  Curtiss 455 

Ooodall  V.  Skelton 341 

Goodale  v.  Tiittle 477 

Goodhue  V.  Churchman 289,  8;51 

Good i II j:  V.  Shea 301,475 

Ooodn.imrh  v.  City  of  Oshkosh 387 

Goodrich  V.  Tracy 690 

Goodspeed  V.  Robertson 305 

Good  title  V.  Holdfast 703 

Goodwin  V.  Nelvin 4ti8 

Goodyear  V.  Brooks 64,    89 

Gofxlycar  V.  Osden 319 

Gordon  v.  I)ix ;}71 

(;-Tdon  V.  Elphii;k 3;f.J 

(iordiiii  V.  Harper 417 

(iord'.ii  V.  Hostetter 191,4.57,843 

Gordon  /.  SturlinK Ill,  82.i 

(jore  V.  Willliims ityi 

Gorliam  V.  <iorham 92 

Gorton  V.  Keeler '.. 577 

GoslinKV.  Acker 57 

Gotchens  V.  Matteson 468 

Gould  V.  ArmstronK 168,  668 

Gould  V.  IJoaton,  etc 480 


PAdH 

Gould  V.  Chapin 794 

Gouldv.Gould 61 

Gould  V.  Homer 559,569 

Gould  V.  Thompson 466 

Gould  V.  Williams 49,  531,  605,  6.52 

Goulding  v.  Davidson 372 

Goulet  V.  Asseler 24,  3GI,  303 

Gourley  V.  Linsenbigler    842 

Gouveueur  V.  Elmeudorf 557 

Gove  V.  Lawrence 901 

Gower  V.  Eyre 476 

Grade  V.  Palmer 860 

Graff  V.  Bennett 411 

Graham  v.  Harrower 397,  678 

Graham  V.  James  430 

Graham  v.  Kinder 399 

Graham  v.  McCoun 283 

Graham  v.  Scripture 362 

Graham  v.  Stone 573,  574,  575 

Grand  Junction,  etc.,  v.  Shugar 475 

Granger  V.  Olcott 378 

Granger  v.  Pulaski 311 

Grant  V.  Lasber 765 

Grant  v.  McCaughin 830 

Grant  V.  Shurler 14« 

Grant  v.  Smith 69? 

Graves  v.  Dudley 457 

Graves  V.  Porter 416 

Graves  v.  Spier 372 

Graves  v.  Woodbury 620 

Gray  v.  Bom  pas 693 

Gray  V.  Chaplin 109 

Gray  V.  Durland 435,  426 

Gray  v.  Harris 879 

Gray  V.  Kendall 644 

Gray  V.  Nellis  31i 

Grey  V.  Palmer 841 

Great  Western  Ry.  Co.  v.  Braid 904 

Greaton  V.  Smith ■s-Se 

Green  v.  Barrett 138 

Green  v.  Bates 98, 103,  liM,  285,  2S9 

Green  V.Clark 75.76,301 

Green  v.  Folgam 353 

Green  V.  Green 61 

Green  v.  Law 695 

Green  V.  Putnam 40,  401 

Green  v.  Roberts 398 

Green  v.  Shepherd 169 

Green  v.  Shumway 468 

Greene  v.  Hudson 397 

Greene  v.  Kennedy 453 

Greenleaf  v.  Mumford 128 

Green  vault  v.  Davis 168 

Gregg  v.  Birdsall  410 

Gregg  V.  Pierce 418 

Gregory  v.  Trainer 800 

Gouldv.Gould 70 

Gridley  V.  Gridley  Ill,  140 

Gridley  V.  McCumber 251 

Griffin  v.  Clarke 323 

Gritiin  V.  Cohen 819 

Griffin  V.  Colver 319 

Griffin  V.  Griffin 142 

(Jriffith  V.  Follett 311,  687 

Griilith  v.  Lewis 696 

Griffith  V.  McCullum 686 

Griffith  V.  Williams... 104 

Griggs  V.  Howe 843,  844 

Grim  V.  Oirs 484 

Grinnell  v    Schmidt 70,  91,  &4 

Grocers'  Bank  v.  Clarke 71 

Grocers' Bank  v.  Kingman 440 

Groesbeck  V.  Dunscomb 415 

Groser  v.  Stellwagen 138 

Orosvenor  v.  Atlantic,  etc 355 

Grounsell  v.  Lamb 424,  694 

Grout  V.  Townsend 168 

Oroverv.  Brandenburg 483 

G  run  well  V.  G;irner 100 

Grymes  V.  Howe 967 


TABLE   OF   CxiSES   CITED. 


XXI 


PAGE. 

Guardians,  etc.,  v.  Green 441 

Guest  V.  Warren 139 

Guier  V.  Pa^e 693 

Guilderlaud  v.  Knox 71 

Guilhon  V.  Londo 447 

Gurnee  v.  Hossie 64 

Gutchess  V.  Daniels 89:^ 

Gutciiess  V.  Whiting 293 

Guy  V.  Oaicley 843 

Gyre  v.  Culve 665 

Haach  v.  Fearing 384 

Hubicht  V.  Pemberton 83,  91,  117,  748 

Haclcett  v.  Belden 103,  146 

Haokett  v.  Ricliards 537,  799 

Hackleyv.  Ogmun 586,597,  598 

fladley  v.  Taylor 384 

Hagal  V.  Simmons 843 

Hiigai-  V.  King 703 

Hagerv.  Hager 335 

Ilagorv.  Tibbetta 577 

Hague  V.  O'Connor 304 

Haight  V.  B  idgley 353,  563,  679 

Haight  V.  C.iild 184,  433,  433,  434,  555 

Haight  V.  Hovt 70,  337 

Haitrht  v.  Sahler 393 

Haines  V.  Corlies 347 

Haire  v.  Baker 26,  588,  631,  765,  767 

Hale  V.  Omaha  National,  etc..  863,  886,  893 

Hale  V.  Rawson 434 

Hall  V.  Bartlett 730 

Hall  V.  Cazenove 334 

Hall  V.  City  oi  Buffalo 68 

Hall  V.  Cochrane 870 

Hall  V.  Fisher Ill 

Hail  V.  Hodskins 294,  448,  704 

Hall  V.  Huntley 154,  830 

Hall  V.  Landerdale 393 

Hail  V.  McKechnie 364 

Hall  V.  Middleton 718 

Hall  V.  People's  Mut.  Ins.  Co 677 

Hall  V.  Robinson 66,  70,  460 

Hall  V.  Southraayd 201 

Hall  V.  Stryker 864 

Hall  V.  Taylor 326 

Hall  V.  Vaughan 466 

Hall  V.  Warner 303 

Hall  V.  Wei^tern,  etc 193,417 

Halle nbeck  v.  Clow 573,574,  597 

Hallett  V.  Hallett.... 84,    85 

Hallett  V.  narrower 96 

Halliday  V.  Hart.  .. 673 

Hallock  V.  Jaudin  435 

Hallock  V.  Miller 346,  330 

Halsey  v.  Black 405 

Malsey  v.  Carter    636,  695 

Halsey  V.  Flint 461,  701 

Halsey  v.  Reid 468 

Halstead  v.  Black 209 

Halstead  v.  McOhesney 339 

Ham  V.  Greve 699 

Hamhleton  V.  Veere....     .     233,397 

Hamilton  v.  Cummings 408 

Hamilton  v.  Ganyard 434 

Hamilton  v.  Grid'ley 840 

Hamilton  V.  Hough 530,60.5- 

HamiJton  v.  Lomax 436 

Hamilton  V.  McPherson 319 

Hamilton  v.  Waters  330 

Hamilton  v.  Windolf 873 

Hamilton  v.  Wright 73 

Hamlin  v.  McCahill 376 

nammack  v.  AVhite 388 

Hammer  v.  Barnes 3.')3 

Hammond  V.  Christie 663,  701 

Hammond  v.  Corbett 899 

Hammond  V.  Shepard 437 

H;immond  V.  Tillotson 238 

Hance  v.  Hemming 517,  541 

Hanks  y.  Drake 685 


PAGE. 

Hannav.  Shields 700 

Hannay  v.  Pell 632 

Hanover  V.  Turner 304 

Hanse  v.  Cowing 673 

Hanvey  v.  Rochester 393 

Hanway  v.  Boultbee  333 

Harbin  v.  Green 397 

Hard  V.  Seeley 676,  690,  694 

Hardcastle  V    South,  etc 346 

Hardman  v.  Bowen 297 

Hardy  v.  Ames 680 

Hardy  V.  Peyton * —  457 

Hardy  V.  Veasly  .. ! 303 

Hare  V.  White 839 

Harger  v.  McCullough 168 

Harger  v.  Wilson 887 

Hargraves  v.  Holden 339 

Harker  v.  Mayor 436 

Harley  V.  King 316 

Harley  V.  Ritter 54 

Harlow  V.  Hamilton..  250,  591,  593,  647,  6.53 

787 

Harmony  v.  Bingham 467,  676 

Harper  v.  Bangs 361 

Harrington  v.  Binns 399 

Harrington  V.  Slade 831 

Harrington  V.  Snyder 303 

Harriott  v.  Van  Cott 316 

Harriott  v.  Wells 831 

Harris  v.  Clark 481 

Harris  V.  Cone 353 

Harris  v.  Currier 398,  399 

Harris  v.  Fawcett 868 

Harris  v.  Frink 873 

Harris  v.  Hammond 588,  639,  673 

Harris  v.  Knickerbocker 5.55 

Harris  v.  Moody 369 

Harris  v.  Schultz 843 

Harris  v.  Smitli 75 

Harris  V.  Stoiy 683 

Harrison  v.  Good 396 

Harrison  v.  Bailey 840 

Harrison  v.  Great,  etc 387 

Harrison  V.  Mfilntosli 75 

Harrison  v.  Marshall 303 

Harrison  v.  Richardson 563 

Harrower  V.  Ritson 686 

Harrus  v.  Healey 411 

Harser  v.  Wallis 484 

Kart  V.  Hart 484 

Hart  V.  Harvey 3i5;i 

Hart  V.  Hoffman 854 

Hart  V.  Hudson 344 

Hart  V.  Lauman    488 

Hart  V.  Sexias 363 

Hart  V.  Young 373 

Harter  v.  Crill 567 

Hartford,  etc.,  v.  Brusli  694 

Hartford,  etc.,  v.  New  York,  etc..  675,  684 

Hartley  v.  Herring 346 

Hartley  v.Tatham 622,  665,  688 

Hartnett  v.  Gelding 433 

Harvey  v.  French 367 

Harvey  v.  Mount 113 

Harvey  v.  Smith 335,  673 

Harwood  V.  Hilyard 393 

Hasbrouck  V.  Kingston 443 

Hasbrouck  v.  Lounsbury 76,  301 

Haskell  V.  Blair 4S6 

Haskins  V.  Kelley 130,  309,  407 

Hasser  v.  Wallis 484 

Kassinger  v.  Solms 383 

Hassour  v.  Doe .   433 

Hastings  v.  Mc.K:inIey..58,  103,  660,  743,  744 

Hatch  V.  City  of  Buffalo 310,  408,  443 

Hatch  V.  White 393 

Hatch  V.  Wolf 391 

Hatcher  V.  Hatcher 43:1 

Hathorn  v.  Leland 4.53 

Hatters'  Bank  v.  Phillips 497 


xxu 


TABLE   OF   CASES   CITED, 


PAGE. 

Haiipt  V.  Pohlman 370 

HMveineyer  v.  CunninKham i'H 

Havens  v.  Pitterson 464,  465 

Hawes  V.  Woolcock 668 

Hawk  V.  Thorn 65,139,191 

Hawkins  v.  Clifford 473 

Hawkins  v.  Jackson 376,  414 

Hawks  V.  Drake 685 

Hawks  V.  Inliabitants 899 

Hawley  v.  RiUler 331,  aSS 

Hawley  v.  Clowes 475 

Hawlpyv.  Wallace 348 

Hawley  et  al.  V.  Woh'erton 43 

Hawrally  v.  Warren 434 

Havden  V   Bradley 3*^4 

Hayes  v.  Borders 397 

Havden  v.  Cram 343 

Hayes  V.  Kiddle 84:3 

Haves  V.  Willis 353 

Hayley  v.  Goldsmith 424 

Haynes  v.  Foster 679 

Hays  V.  Drake 397,  679 

Haxton  v.  Bishop 3:39 

Hearne  v.  Keene  466 

Heat  V.  Gillmer 397 

Heath  v.  Barman 409,443,  704 

Heath  V.  Harmour 704 

Heaton  V.  Wrifjht 573,  577 

Heckle  V.  Lurvey 373 

Hedi,'es  V.  Hudson  R.  R.  R.  Co 856 

Heebner  v.  Townsend 463 

Heelii  V.Crawford 698 

Heermans  v.  Williams 483 

Helfernan  v.  Benkard 384 

Heine  v.  Anderson. ...  195,  313,  316,  234,  325 

518,  570 

Hemson  v.  Decker 161 

Henderson  V.  Eason 4ii 

Henderson  v.  Jackson.. ..  139,  148,  364,  274 

609,  7.53 

Hendricks  V.  Decker 288,564,  565 

Hendrickson  v.  Beei-s 71 

Hennessy  v.  Farrell 487 

Henning  v.  New  York,  etc 110 

Henry  v.  How 809 

Henry  v.  Henry 143 

Henrv  V.  Root 677 

Henshall  v.  Roberts 156 

Herbert  v.  Hexes 401 

Hermance  v.  J'ames 347 

Heron  v.  Davis 487 

Heron  V.  Treyne 394 

Herr  v.  Bamburg 574 

Herrick  v.  Borst 698 

Herrick  V.  Fritchor 6'i7 

Herring  v.  Dole 333 

Herring  V.  Hoppock 453 

Hertzog  v.  Hertzog 308,  489 

Hess  V.  Buffalo,  etc . .  126, 143,  7.53 

Hess  V.  Fox 020 

Hewes  v.  -McXamara ,3i»2 

Hewitt  V.  Ma.son .'"  i:>\] 

Hewitt  V.  .Melton 3;Jo 

Heyi^v.  Bolles 318,  .516 

Hibbard  v.  l<r>binson 370 

Hibbiird  V.  Stewiirt '.  458. 

Hichens  V.  CntiLireve 109 

Hickock  V.  Hickock 322 

Hicks  V.  Cleveland 4«0 

HIck.s  V.  Doran 311,  386,  388,  396,  687 

IlIckH  V.  CrjIderHleeve mi 

Hicks  V.  Hinds 093 

jli.ksvlllo  V.  Long  Island,  etc.  588,"  628,  m 

Hler  V.  Grant 5<j7 

JliL'irlns  V.  Duwey .'..'.'.'!!!!  879 

HiiTL'itu  V.  Freeman 121 

jl    •-■-.-.  V.  Rockwell 517,526 

I   i_-.:i.nv.  Hcr.tt 206,  207 

}iik'L'iti'<  V.  Thomas 565 

Hlgglns  V.  Wright 4381 


PAGE 

Higgs  V.  Mortimer 811 

High  V.  Batte 564 

Hill  V.  Finney 298 

Hill  V.  Fiske 435 

Hill  V.  Kirwan 88 

Hill  V.Lane 108 

Hill  V.  McCarthy 31,  35,  790 

Hill  V.  Mulier 600,  642,  643 

Hill  V.  Place 321,  688,  700,  701 

Hill  V.  Smith 651,  654,  831 

Hill  V.  Sweetzer 698 

Hill  V.  Thacter 57,  59,  154,  155,  283 

Hilliard  v.  Austin 206 

Hilliard  v.  Richardson 345 

Hillman  V.  Hillman 149,  151,  594 

Hills  V.  Balls 470 

Hills  V.  Hayes 901 

Hills  V.  Tali  man's  Adm'r 695 

Hilton  V.Woods 460 

Hinde  V.  Smith 855 

Hinds  V.  Tweddle 765 

Hine  v.  Handy 168 

Hiner  v.  Newton 8.59 

Hinnan  v.  Judson 587,  631 

Hinton  v.  Hudson 347 

Hitchings  V.  Van  Brunt 770 

Hitchcock  V.  Hitchcock 400 

Hoard  v.Peck 348 

Hoare  v.  Dickinson 246 

Hobart  College  V.  Fitzhugh 313,  481 

Hockenburg  v.  Meyers 166 

Hodges  V.  Callaghan 370 

Hodgesv.  Hunt 206 

Hodges  V.  Smith 358 

Hodgman  v.  Western  R.  R.  Corp'n.  66,    67 

Hoe  V.Sanborn 470 

Hoey  V.  Felton 346,  319 

Hoffman  V.  .^tna  Ins.  Co 298 

Hoffman  v.  Armstrong 296,  451 

Hogan  v.  Hojt 100 

Hoggan  V.  Wardlow 870 

Holden  v.  Clancey 425,  469 

Holland  v.  Prior HO 

Hollenbeck  v.  Claw 573,  584,  816 

Holley  v.  Boston  Gas  Light  Co 340 

HoIleyv.Mix 333 

Holliday  V.  The  Ve.stry 388 

Hollingdale  V.  Lloyd...   .  372 

HollisV.  Wells 892 

Hollisterv.  Hollister 209 

Holman  V.  Dord 221 

Holmes  V.  Clarke 374 

Holraesv.  Davis 233,  491 

Holmes  V.  Holmes 181,  566,  568,  703 

Holmes  v.  Kerrison 321 

Holmes  V.  Twist 39J 

Holmes  V.  Weed 303 

Holt  V.  Hardcastle 88 

Holt  V.  Ross 380 

Holtsinger  v.  Nat.  Com.  Ex.  Bank.  334,  380 

Hone  V.  Mutual,  etc 319 

Hood  V.  Inman 49,  593 

Hoogland  v.  Hudson  et  al 96,  765 

Hooker  V.  Knob 668 

Hooper  v.  Lane S97,  677,  678 

Hope  Mut.  Ins.  Co.  v.  Taylor 680 

Hopkins  v.  Adams 69 

Hopkins  v.  Everett 532,  545 

Hopkins  V.  Richardson 491 

Hopkins  V.  Tangueray 472 

Hopper  V.  Hopper 696,598 

Horn  v.Bensusan 324 

Horne  V.  Midland  R'y  Co 902 

Horner  v.  Lyman 440,463 

Horner  v.  Wood 71 

Hornfager  V.  Hornfagcr..  2i-5,  288,  660.  744 

833 

Horsfall  v.  Thomas 337 

Horson  v.  Pi  ice . .  42;} 

Hortou  V. Garrison 292 


TABLE   OF   CASES   CITED. 


XXIU 


PAGE. 

Horton  V.Payne 54,  60,  288 

Hosford  V.  Merwin 236 

Hosley  V.  Black 171,  ] 81,  566 

Hotalinsv.  Hotaling 230,  321,  448,  466 

Hotchkins  v.  Hodge 4:i6 

Hotchkiss  V.  Artlzans'  Bank 331 

Hotchkiasv.  Auburn,  etc.,  R.  R.  Co,  143,  450 

Hotchkiss  V.  Crocker 155 

Hough  V.  London 389 

Houghton  V.  Allen 80,  81,    84 

Hougi.ton  V.  Bachman 677 

Houghton  V.  Skinner 288,  657,  833 

Houghton  V.  Townsend....  361,510,511,  549 

550,  554 

Houghtwout  V.  Murphy 394 

House  V.  Cooper 141 

House  V.  Corning 686 

Hover  V.  Barkh  oof 311 

Hovey  v.  McCrea 235,  353 

Howard  v.  Albro 704 

Howard  v.  Growth er 71,  436 

Howard  v.  Farley 304 

Howard  v.  France 321,  403 

Howard  v.  Halsey 438 

Howard  v.  Holbrook 703 

Howard  v.  Michigan  South.  R.  R.  Co.,  714 

823 

Howard  v.  Sexton 213 

Howard  v.  Shaw 466 

Hi  iward  v.  Sherward 470 

Howard  v.  Tiffany  ....  33,  36,  41,  49,  348,  249 

Howe  v.  Buffalo,  etc.,  R.R.  Co 293 

Howev.  Peckham 139,149,265,390 

Howe  V.  Wilson 448 

Howell  V.  Frazer 271,  536,  756,  777,  801 

Howell  V.  Knickerbocker  Life  Ins.  Co.,  398 

Howell  V.  White 674 

Howland  v.  Coffin 306 

Howland  v.  Cuykendall 680 

Howland  v.  Edmonds 680 

Howsee  v.  Hammond 478 

Uoxsie  V.  Cushman 172,174,533 

HuyL  V.  Bonuett 680 

Hoyt  V.  Gilston 467 

lioyt  V.  McKensie 314,  366,  407 

Uoyt  V.  Sheldon 288 

Hoyt  V.  Thompson 66,  566 

Hul)er  V.  Riley 468 

Hubbard  v.  Briggs 337,  738 

Hubbart  v.  Phillips 300 

Hubbellv.  Carpenter 439 

Hubbell  V.  Cramp 666 

Hubbellv.  Fowler 713 

Hubbell  V.  Livingston 281,  808 

Hubbell  v.  Sibley 793 

Hubbel  V.  Van  Schoening 894 

Hubert  v.  Fera 371 

Huddard  v.  Bigby 704 

Huddlestone  v.  Lowell,  etc 393 

Hudson  V.  Huyler 371 

Hudson  v.Lutz 398,489 

Hudson  V.  Plets 330 

Hudson  River  V.  Loeb 395 

Huelet  V.  Rayno 314,  633 

Huet  V.  Lord  Hay 99 

Huffer  V.Allen 370 

Huffv.  Bennett 268 

Huffv.  Wagner 887 

Huggins  V.  King  112,  113 

Hughv.Rees 149 

Hughes  V.  Evans 53 

Hughes  V.  Garner 393 

Hughesv.  McFie 386 

Hulbert  v.  Ferguson 441 

Hulbert  v.  Hope  Mut.  Ins.  Co 741 

Hulbert  V.  New  York,  etc 386 

Hulce  V.  Thompson 136, 138, 143,  353 

Hulett  V.  Whipple 366 

Hull  V.  Ball 643,  644 

Hullv.  Hull ..  717 


PAGE. 

Hullv.Smith 654 

Hullv.  Vreeland 139 

Hume  V.  Pocock 43i 

Hummell  V.  Wester 390 

Humphrey  v.  Brown 253 

Humphrey  v.  Mitchell 628 

Humphreys  v.  Buller 339 

Humphrey  v.  Persons 207 

Humphreys  v.  Pratt 883 

Huntv.  Amldon 468 

Hunt  V.  Chapin     885 

Hunt  V.  City  of  Utica 493 

Hunt  V.  Dutcher 180,  209 

Hunt  V.  Farmers'  Loan  &  T.  Co 588,  633 

636,  637,  639 

Hunt  V.  Meacham 282,645 

Hunt  V.  Wallis 831 

Hunt  V.  Wolfe 323 

Hunt  V.  Wolton 223,  398 

Hunt  V.  Wyman 424 

Hunter  V.  Frisbee 765 

Hunter  v.  Gibbons 682 

Hunter  v.  Hudson  River  Iron,  etc  ,  Co.,  309 

Hunter  v.  Hunter 313,  468,  481 

Hunter  v.  Powell 142,  364,  753 

Hunter  V.  Town  of  Marlboro' 563 

Hunter  v.  Walters 684 

Huntington  v.  Ballou 681 

Huntington  V.  Claflin 493 

Huntington  v.  Douglass  .   473,  666,  705 

Huntington  V.  Ogdensburgh,  etc 485 

Huntington  v.  Tlaomas 705 

Huntley  v.  Dows 324 

Huntly  V.  Sanderson 383 

Hurd  V.  Swan 483 

Hurlbutv.  Young 226 

Hurst  V.  Litchfield 192,  204 

Huson  V.  Dale 577 

Hussee  V.  Koundtree 489 

Hustedv.  Craig 304 

Hutchings  v.  Munger 314,  435 

Hutchins  v.  Smith 75,  437,  883 

Hutchinson  V.  MarketBank 564 

Hutchinson  V.  Peck 347 

Hyatt  V.  Bates 408 

Hyatt  V.  Pugsley 158 

Hyatt  V.  Taylor 354 

Hyde  v.  Conrad 765 

Hyde  v.  Cookson 460 

Hyde  v.  Tanner 400 

Hyde  v.  Van  Valkenburgh 118 

Hyland  v.  Paul 676 

Hyland  v.  Sherman 471 

Hynds  v.  Griswold 240,241,342,  243 

585,  590 
Hynds  v.  Shults 480 

Ibbottson  V.  Peat 395 

Iddings  Y.  Bruen 108 

Hey  V.  Frankenstein 890 

Imperial  Gas  Co.  v.  London  Gas  Co.  681,  682 

Ingerson  v.  Miller 435 

Ingersoll  v.  Skinner 129 

Indemaur  v.  Dames 386 

Jngraham  v.  Baldwin 61,  734,  773,  781 

Inhabitants  v.  Inhabitants 400 

In  re  Bare  Bank  Drainage 435 

In  re  Hubbard's  Dog Ill 

In  re  National,  etc 124,  438 

In  re  Needham 666 

In  re  Tresider 366 

In  re  Wetmore 666 

Ireland  V.  Litchfield 103 

Ireland  V.  Nichols — 364 

Irish  V.  Nutting 842 

Irvin  V.  Brandwood 438 

Irvin  V.  Fowler 384 

Irvin  V.  Gregory 434 

Irvine  v.  Wood 384,  842 

Irvine  v.  Irvine 677 


XXIV 


TABLE   OF   CASES   CITED. 


PAGE. 

Isaac  V.  Velloman 241 

Isahi-lla,  The 2^W 

Isliam  V.  Williamson T97 

Isle-s  V.  Tucker 520 

Ives  V.  Humphrey 19* 

Ives  V.  Van  Auken 4S0 

Jack  V.  Martin 477 

Jack.Ji  V.  Darrin 3ii9 

Jackson  V.  Alexandria KiS 

Jackson  V.  Anderson S43 

Jackson  v.Bradt 400 

Jackson  V.  Cory (J^3 

Jackson  v.  Crawford 484 

Jackson  v.  Edwards Ill 

Jackson  v.  Griswold 673 

JacksDii  V.  Hiisbrouck 8fJ4 

Jackson  V.Henderson 319 

Jackson  V.  Hopperton 695 

Jack 'on  v.  Jackson 169 

Jackson  v.  I'orc 169 

Jackson  v.  i;o\ve 563 

Jackson  V.  Stopherd 402 

Jacicson  v.  Wliedon 527,  569 

Jacoiis  V.  Alhird 478 

Jacobs  V.  Kolf 305 

Jacobson  v.  LaGrange 488 

JaniLS  V.  Chalmers  ....  72,  173, 174,  256,  529 

James  V.  Christy 397 

James  v.  Emery 109 

Jarndviu  V.  Exeter 418,  422,  423 

Jarmain  v.  Hooper 299 

Jarvis  v.  Felch 100 

Jarvis  V.  Sevrall 303 

Jayocks  V.  Ayres 573 

Jeky  II  V.  Sir  John  Moore 368 

Jenkins  V.  Continental  Ins.  Co 412 

Jenkins  v.  Van  Scliaack 257 

Jenkins  v.  Wheeler 483,  676 

Jenness  v.  Emerson 400 

Jenness  v.  Wendell 867 

Jennings  V.  Brown 426 

JenninsfS  V.  Great  Western,  etc  409 

Jermain  V.  Hooper 4.53 

Jermain  V.  Pattison 297,  329 

Jeroliinon  v.  Cohen 137,  139,  277 

Jerome  V.  Scudder 430 

Jervis  V.  Smith 434 

Jervis  V.  Tomkinson f)7(i 

Je!<sop  V.  .Miller 70,  309 

Jewett  V.  Crane 464 

Jewett  V.  Keenholts 454 

Jewett  V.  Palmer ^ki 

Joannes  v.  Day 72ti 

Johns  V.  Norrls 674 

Johnson  V.  nudKe 101 

Johnson  V.  Ca.sey 809 

Johnson  v.  Crane ;j(l(j 

Johnson  V.  Dixon 3Ci 

Johnson  v.  Hathorn 191,  473,  8;52 

Johnson  V.  Hubbell 893 

Johns" m  V.  McDonald 424 

Johnson  V.  .Mallory 268 

Johnson  v.  Melicott ;5(K) 

Johnson  V.  Plowman 193 

JolMl^on  V.  Smith .-jtil 

Johnson  V.  Snyder 287,827 

Joliiison  V.  Tiitewiler 877 

Johnson  V.  Wetmore 705 

Johnson  V.  White 47.-) 

Johnston  V.  Ketmelt 70,  115 

Johiston  V.  Winter 895 

John-l'. MP  V.  Allen  3:!7 

Jones  V.  Dewicko (i7,S 

Jones  V.  lioiie ' .  ;$.-):,• 

Jfinos  V.  Buckley ,,  400 

Jones  V.  liuller 273 

Jones  V.  (JIIIT \\[\  703 

Jones  V.  Commonwealth 296 

Jonej  V.  Davis 4;jj 


PAGE. 

Jones  V.  Felch Ill 

Jonesv.Fort 843 

Jones  V.  Fowler ..  410 

Jones  V.  Gibbons 410 

Jones  V.  Housatonic,  etc 881 

Jones  V.  Jervis 399 

Jones  V.  Morrell 354 

Jones  V.  Norwich 888 

Jones  V.  Palmer 150 

Jones  V.  Phoenix  Bank 421 

Jones  V.  President 486,  487 

Jones  V.  St.  John's  College 406 

Jones  V.  Turner 477,  478 

Joyv.Martin 103 

Judd  V.  Ensign 702 

Juddv.Fargo 881 

Judd  V.  Young 118 

Judge  V.  City  of  Meriden 869 

Judge  V.Hall 313 

Judson  V.  Cook 456 

Judson  V.  Gray 299 

Jumel  V.  Jumel 468 

Justison  V.  Crow 701,703 

Kahm  V.  Frej-tag   564,  567 

Kanawha,  etc.,  v.  Kanawha,  etc...  367,  434 

Kane  V.  Sanger 552 

Karker  V.  Waverly  429,  445 

Kasson  V.  People 672,673 

Kastor  V.  Newhouse 365 

Kaufman  V.  Griesnan 478 

Kaufman  V.  White 478 

Kaupe  V.  Bridge 318 

Kay  V.  Thompson 104 

Kay  V.  Whittaker 591,610 

Keates  v.  Earl  of  Cadogan 338,  365 

Keating  v.  New  York  Cent.  K.  R.  Co...  881 

Keefer  V.  Thomas 648 

Keeler  V.  Salisbury 169,662 

Keene  V.  Clarke 406 

Keene  v.  Laf arge 102 

Keene  V.  Wheatley 836 

Keenholts  V.  Becker 212 

Keese  V.  FuUerton ..  834 

Keliher  v.  Connecticut,  etc 882 

Kellerv.Clark 193,221 

Kelley  V.  Babeock 888 

Kelleyv.Lane 128 

Kelley  v.  Tilton 294,  295 

Kelley  V.  Wade 294 

Kellogg  V.  Baker 515 

Kellogg  V.  Chicago,  etc 392 

Kellogg  V.  Church 65 

Kellogg  V.  Olmstead 110, 169,  672,  692 

Kellogg  V.  Sweenej' 74,    75 

Kellogg  V.  Valentine 451 

Kelly  V.  Breusing 188,427 

Kelly  V.  Campbell 75 

Kelly  V.  Downing 274 

Kelly  V.  Morris 314 

Kelly  V.  Solari 377,  378 

Kelsey  V.  Bradbury 618 

Kelsey  V.King 409,443 

Kelsey  V.  National  Bank 890 

Kelsov.  Kelly 430 

Kimble  v.  Wallis        393 

Kendall  V.Stokes 687 

Kendall  V.  Stone 738 

Keniiierv.  Kennler.  .  324 

Kenny  V.  First  National  Bank 335 

Kent  V.  Thomas 690 

Kernv.  Towsley 212,  .564 

Kerr  v.  Hays 144,  268,  607,  609 

Kerr  V.  Mount 4.53 

Kerrick  v.  Bransley 481 

Kerrigan  v.  Kay  214 

Ketcham  v.  Zarega....  541,  516,  547,  603,  004 

762,  799 

Ketchnm  V.  Barber 168 

Kettlelas  V.  Maybeo 562 


TABLE   OF   CASES   CITED. 


XXV 


PAGE. 

Kettletas  v.  Myers 171 

Keyes  v.  Johnson 3U4 

Kidwelly  v.  Kaby 438 

Kidzie  v.  Sacorider 453 

Killioore  v.  Culver 75 

Kimberiy  V.  Dix  488 

Kimberly  v.  Patchiu  ...   343 

Kincaid  v.  Eaton.. . .       420,  536 

Kincaid  V.  Kipp 281,644 

King  V.  Baldwin 097 

King  V.  Donnelly 2m 

King  V.Dunn 100 

King  V.  Fitch 1!U 

King  V.  King 4H(5 

King  V. -Mayor,  etc 831 

King  V.  Orser 437 

Kingv.  Poole 3ti2 

King  V.  Ray 530 

Kingv.  Sheriff,  etc 464 

King  V.  Stafford 794 

King  v.  Utica  Ins.  Co 523 

Kingv.Watts 387 

Kingman  V.  Hotaling 84.3 

Kings  V.  Lea  Ins.  Co 593 

Kingsiand  v.  Braisted 97,  303,  404,  496 

Kingsley  V.  Bill 393 

Kingston  Bank  v.  Eltinge 377,  378,  381 

Kinney  v.  Kiernan 445,  669,  700,  703 

863,  889 

Kinney  v.  McCuIlock 438 

Kinney  v.  Nash 210 

Kinsey  v.  Ford 56.) 

Kintrea  v.  Peiston 474 

Kipling  V.  Turner 4Bi 

Kirby  v.  Baylston,  etc 489 

Kii'by  V.  Carr 403 

Kirkland  v.  Leary 308 

Kissa:n  V.  Ha;iiilton 09,  101 

Ki.ssoclt  V.  Grant 4.")3 

Kitciiea  V.  Lee 351 

Kitfhum  V.  Stevens 470 

KittU:v.  Van  Dyck 131 

Knapp  V.  Abeli 3b'3 

Knapt- V.  Burnham 618,  619 

Kuapp  V.  Hyde 670 

Knee  V.  Tomlinson 615 

Kneedler  v.  Sternburgh  ..  546,  .550,  615,  636 

Knelssv.  Seligman 768, 

Knickerbocker  Life  Ins.  Co.  v.  Eccle- 

sine 320,  367,  429 

Kniflen  V.  McConnell 426,  504,  507 

Knight  V.  Beach 690,  701 

Knigiit  V.  Cambers 383 

Kni'jrht  V.  Conn.,  etc 393,  394 

Knight  V.  Goodyear 881 

Kniglit  V.  Wilcox 425 

Knowles  v.  Gee 23,  37,  38,  .594 

Knox  V.  Mayo 395 

Knoxv.  Nutt 168 

Kohn  v.  Lovett 346 

Koney  v.  Ward 294 

Konitzkyv.  Meyer 866,  891 

Kortright  v.  Cody 701 

Rowing  v.  Manly 870 

Kreitz  v.  Frost 376,  647,  653 

Krulderv.  Ellison 74,  666 

Kuhn  V.  Stevens 380,  684 

Labaree  v.  Colby 373 

Laburohere  v.  Davs-son 341 

Lachaise  v.  Libby 103,  146 

Ijackey  v.  Vanderbilt 151,  267 

Lafarsre  V.  Halsey 623 

Lafarge  v.  Herter 411 

I.af a rge  V.  Mansfield 405 

liaflin  v.  Griffiths 451,  475 

I.a  Grange  v. Merrill  et  al 107 

T/ahoy  v.  Brady 69,  105 

L;ihey  v.  Kingon 03 

Laidlaw  v.  Organ 336 

D 


PAGK. 

Laimbeer  v.  Allen 281 

Lake  v.  Artisans'  Bank 378,  438,  407 

Lakev.Hurd 863 

Lamb  v.  Burbank 884 

Lamb  V.  Lathrop 48fi 

Lament  v.  Haight 869 

Lamoureaux  v.  Atlantic  Mut.  Ins.  Co..  137 

877 

Lamoreaux  v.  Morris 299 

Lampman  v.   Milkes 478 

Lamport  v.  Abbott 143 

Landon  v.  Levy 110 

Lancaster  V.  Walsh 418 

Lane  v.  Atlantic  Works S80 

Lane  v.  Bailey 638 

Lane  v.  Beam    831 

Lane  V.  Columbus  Ins.  Co 73,    74 

Lane  v.  Gilbert 575,  587,  605,  6.53, 761,  785 

Lanev.  Gould 326 

Lane  V.  Hitchcock 474,  475 

Lanev.  Morse  283 

Lane  v.  Salter 361 

Lane  v.  Wilkinson 701 

Langwoithy  V.  Knapp 265,  609 

Lanier  v.  Wyraan 343 

Laningv.  New  York  Cent.  R.  R.  Co....  877 

Lannen  V.  Albany  Gas  Light  Co 340 

Lansing  v.  Coley 530 

Lansing  v.  Parker 585,  597 

Lansi ngv.  Smith 345 

Lansins  v.  Wiswall 345 

Lantzv.  Frey 398 

Lapham  v.  Kice 793 

Laraway  v.  Perkins 245,  320,  405,  566 

Luriviere  V.  Morgan 860 

LasaJa  v.  Holbrook 449 

Latham  v.  Egerton 463 

Lathi-op  V.  Knapp 437 

Latimer  v.  Wheeler 309,  323 

I/'.ttin  V.  McCarthy 34,  40,  149,  442,  588 

Lattina:v.  Latting 110 

Lawrence  v.  Bank..  81,  88,  140,  143,  505,  633 

Lawrence  V.  Bayard 67 

Lawrence  v.  Boltou 289 

Lawrence  v.  Fox 407 

Lawrence  v.  Kneiss 553 

Lawrence  v.  Gullif  er —  493 

Lawrence     v.     Leake,    etc.,     Orphan 

House 119,  123 

Lawrence  V.  Ocean  Ins.  Co 225,  461 

Lawrence  v.  Smith 169,  668 

Lawrence  V.  Trustees,  etc 119 

Lawrence  V.  Walmsly 693 

Lawi'ence  V.  Woods 380 

Lawrence  v.  Wright 196,  231 

Layman  v.  Whiting 336 

Leach  v.  Bovnton 517,  535 

Leaf  V.  Coles 403 

Leafv.Gibbs 698 

Lear  v.  Friedlander 687 

Leather  Cloth  Co.  v.  American,  etc.,  Co.  447 

Leather,  etc.,  v.  Lorsont 353 

Leather  v.  Simpson 379,  471 

Leavenworth  V.  Packer 435,  613 

Lee  V.  Decker 191 

Lee  V.  Eli  as 2.53 

Lee  V.  Gunsell 397 

Lee  V.  Haley 446,  447 

Lee  V.  Methodist,  etc 293 

Lee  V.Parker 234,235 

Leeds  v.  Bowen 3Ci0 

Lefanu  v.  Malcomson 428 

Lef evre  v.  Latson 283 

Lefferts  v.  Hollister 206,  7.54 

LelTertsv.  Snediker 546,  646,  651,  6.54 

Le  G  uen  v.  G  ouverneur 636 

Lehey  v.  Hudson,  etc 385 

Leishte  v.  Everett 314 

Leland  v.  Ilatijorn 793 

Leland  v.  Tousey 233 


XXVI 


TABLE   OF   CASES   CITED. 


PAGE. 

Lemon  v.  Trull 617,  Tit 

Lent  V.  Padeliord ^i*^ 

Leonardsviile  liiuik  v.  Willard M 

Le  Hi >y  V.  Marshall :i3,  25,  41,    50 

Le  Hoy  V.  Shaw Ill,  1:27,  148,  203 

Leslie  V.  Leslie S31 

Leslie  V.  Pavne 328 

Leslie  V.  Wiley 498 

Lester  v.  Je  wett '^^i 

Lester  v.  Barren 317,  352 

Le  Texier  V.  The  Margravine 112 

Lettinan  V.  Ritz 209,  833.  844,  846 

Leven  v.  .Saiith 405,  424 

Levi  V.  Jakewava 724 

Levitt  V.  Dabriey 318 

Levitt  V.  Fisher 357 

Levy  V.  Heiid 800 

Levy  V.  Hart 312 

Lewis  V.  Acker 605,  620 

Lewis  V.  (jreider 342 

Lewis  V.  .lones 327 

Lewis  V.  Kendall 271,  572,  581,  805 

Lewis  V.  McMillen 622 

Lewis  V.  Mott 70,  140,  .561,  700,  842 

Lewis  V.  Palmer 438,  453 

Lewis  V.  Peachy 223,  397 

Lewis  V.  Hose 864 

Lewis  V.Smith 334,  882 

Lewis  V.  Trickey  491,492 

Lexin;rti>n,  etc.,  K.  R.  Co.  v.  Goodman  141 

Liainbeer  v.  .^llen 643 

Libby  v.  Rosekrans 184 

Liemon  v.  Schenck 588 

Lieiiaii  v.  Dinsmore 389 

Lienan  V.  Lincoln  196,200 

Liftchild  V.  Smith  673 

Liirhte  V.  Kverett  Fire  Ins.  Co 563 

Lillie  V.  Bris 322 

Lillie  V.  Htjyt 322 

Limpus  V.  London,  etc 374 

Linc<jlu  V.  McLatchie 304,  3U6 

Linden  v.  ( iraliam 246,  320 

Linden  v.  Hepburn 21,  31,  41,  276 

Lindslcy  v.  Ferguson 803 

Line  v.  Taylor 294 

Linneirar  v.  Hood 426 

Linsday  v.  Jackson ti29 

Li nsley  V.  Carpenter 312 

Lion  V.  Orser 301 

Llpe  V.  Eisenlord  425 

Lippencott  v.  Goodwin 607 

Liscotnb  V.  New  Jersey,  etc 872,  880 

Lister  V.  Lister 401 

LIstiT  V.  Perrvman 331,  332 

LitdiUeld  V.  Boswell 741 

Little  V.  Uen 704 

Little  V.  Willetts 675 

Llvennore  V.  Bainbridge 102,  103 

LIvesey  v.  Harding 516 

Livingston  v.  Ackeston 39iS 

Liviriirston  v.  Bishop 672 

Livlnirston  v.  Finkle 510,  5.54,  649 

Livingston  V.  Hammer 461,535 

LIvJnKston  V.  Smith 206,  674 

Livini^sron  v.  Stoessel 323 

Liviim^tcn  v.  Tanner 147,227,  231 

Lluyd  V.  isrewster 229 

Lloyd  V.  The  General,  etc 3S7 

lioador  V.  ('larke 326 

Lobdell  V.  Lobdcll 430,  840,  844 

Lobdcll  V.  Stowfill 44:3,564 

Lockhari  V.  Barnard 418 

Loesoliigk  V.  Addison 318 

LoRUB  V.  (iellick 701 

LoKue  V.  Lurke ;>'.i5 

Lomnx    .  Arding 700 

Lombardo  v.  Case 310 

Long  V.  B.illie 3(10 

Longmate  V.  ledger stft 

Lonsmeid  v.  UuUTday 391 


PAGE. 

Longworthy  v.  Bromley 340 

Loom  is  V.  Brown 109 

Loomis  V.  Swick 149,  606 

Loomis  V.  Terry 295 

Loouam  V.  Brockway 373 

Loopv.  Litchfield 337,  391 

Loosey  v.  Orser 565,  606 

Lord  V.  Chesebrough. . .  173, 174, 176,  528,  639 

813 

Lord  V.  Kennev 424 

Lord  V.  Midland 470 

Lord  V.  L'^nderdunck 434 

Lord  V.  Vreeland 253,  776 

Lorillard,  etc.,  v.  Mesharat 633 

Loriug  v.  City  of  Boston 423 

Losee  v.  Saratoga,  etc 388 

Lossee  v.  Williams 903 

Loubz  v.Hufner 390 

Lovegrave  v.  London,  etc 376 

Loveland  v.  Hosmer 573 

Lovell  V.  Eastoff 88T 

Lovelock  V.  King 493 

Lovett  v.  Cowman 830 

Lovett  V.  Hamilton 424 

Low  v.  Archer 303 

Lowber  v.  Kelly 73 

Lowellv.  Lane 498,  623 

Lower  V.  Winters 49 

Lowry  v.  Inman 776 

Lozier  v.  New  York  Central  K.  R.  Co..  327 

Lucas  v.  Commerf ord 431 

Lucas  v.  New  York  Central  R.  R.  Co. . .  Ill 

Lucas  V.  Wilkinson 689 

Lucas  V.  Worswick 378 

Luce  V.Hinds 344 

Luce  V.  Izod 684 

Luckey  v.  Frauteykee 846 

Lucky  V.  Gannon 457 

Lucy  V.  Wilson 700 

LuddiQgton  V.  Taft 226,774 

Ludlow  V.  Hudson,  etc 899 

Luf  ke  V.  Koch 416 

Luir-by  V,  Allday 4  8 

Lumley  V.  Gye 3.53 

Lumley  v.  Wagner 353 

Lund  V.  Seaman's  Savings  Bank 760 

Luscom  V.  Osgood 397 

liUtweller  v.  Linnell 322 

Lutz  V.  Frey 489 

Lyle  V.  Murray 322 

Lyman  V.  Bonney 109 

Lyman  v.  Brown 498 

Lyman  v.  Inhabitants  of  Amherst.  ...  880 

Lynch  v.  Beecher 861 

I^ynoh  V.  Bischoff 431 

Lynch  V.  Nurdin 375 

fiynchv.  Steamer 404 

Lynde  V.  O'Donnell 100 

Lynde  v.  Staats 168 

Lyons  v.  Barnes 890 

Lyon  v.  Valentine 305 

Lys  v.  Withers 357 

McAndrewv.  Whitlock 308,  666,  677" 

Mc  Arthur  v.  Wilder 424 

McAuley  V.  Billinger 4;i7 

McAvoy  V.  Wright 717 

McBride  V.  Farmers' Bank 7i 

McCance  v.  London,  etc 6U 

McCarthy  v.  Silvers i^ 

McCarty  v.  Dixon l-ij 

McCarty  v.  O'Donnell 048 

McClare  v.  Paine 305,  8..4 

McClurgv.  Howard 6'-l 

McConnell  v.  Adams )■• 

McCool  V.  Jacobus 429,  4•^  > 

McCormlck  V.  Bay  City i.')8 

McCormick  v.  Penn.  Cent.  R.  R.  Co.  872,  .vj 

McCormick  V.  Pickering i^t'S 

McCormick  V.  Saraon 50i 


TABLE   OF   CASES   CITED. 


XXVll 


PAGE. 

McCosker  v.  Brady      112, 113  375 

McCoun  V.  Dorsheimer ^"'  J.;.! 

McCoy  V.  Archer ^'-^ 

McCoy  V.  Lord 4o*; 

McCraucy  V.  Alden ■■••  bM 

McCulloush  V.  Colby oto,  ^l 

McDonald  V.  Lord 493,  70b 

McDonald  v.  Murphee •  •  •  •  '^^- 

McDonald  V.  Pierson 4-4,  Wi 

McDonnell  V.  Buffen -■■  ooT 

McDouglassv.  Walling 71,  bo^ 

MoEwen  v.  The  Earl,  etc rfb» 

McG  arry  v.  Board,  etc «J 

MrtGeev.Roen f^° 

McGerrill  v.  Murphy *** 

McG  own  V.  Morrow ^yi 

McGregor  v.  McGregor,  113,  533,  648,  6o3,  654 

ool,  0(0,  o*  t 


McHarg  v.  Eastman . 


840 


McHugh  V.  Schuylkill  Co •  •  •  ■  6b9 

Mcllvain  v.  Edgerton oH'  Z^'^ 

Mclndoev.   Morman  36b,  S(4 

Mclniffe  V.  Wheelock 70^ 

Mcintosh  V.  Mcintosh l*-- 

Mclntyrev.  Borst «4 

Mclntvre  v.  Morris ■  •  •  •  *»' 

TIcKean  V.  Mclvor °"''  ^^r 

McKechnie  v.  Sterling •  •  •  *J!R 

McKee  v.  Judd °^'  rn^ 

KcKensie  V.  Farrell ••   '»» 

MoKensie  V.  L'Amoureaux 84,    oJ 

MckIou  V    See....  140,235,274,345,368,  449 
4ol,  4o5,  84.^ 

McKinleyv.  Am.  Ex.  Bank 334 

McKnight  V.  Dunlop ,AA- k-W  if, 

McKyring  v.  Bull 539,  5o0,  564 

McLaren  v.  Hartford,  etc 46^ 

McLaughlin  v.  McGovern b98 

McLaughlin  v.  Nichols •  •  •  ■     "Od 

McLaughlin  V.  Walsh 346,  3„0 

McLean  v.  Tompkins ;a-  Vn  '.^i '  iin   S^o 

McMahan  v.  Allen 40,  69,  71, 110,  389 

McMahanv.  Burchell 444 

McMahan  v.  Brie,  etc 4bH 

McManus  V.  Cricket •  ■  •  ~-^ 

McMasterv.  Booth 31,    38 

McMorris  v.  Simpson 843 

McMuUen  v.  Wooley 473 

McMurray  v.  Gifford „"•  ■„•„•,■  •  rrn   ?:;« 

McMurray  V.  Thomas 270,  27L  557,  5b9 

McNaught  V.  McCloughry 169 

IMcNaughton  v.  Cameron 843 

McNeilv.  Tenth  National  Bank 457 

McQueen  v.  Farquhar 563 

McQueen  V.  Babcock •■■■  8«1 

McVean  V.  Scott 1^^'  inn 

McWilliamsv.  Mason 699 

Mabeev.  Fisk 4^ 

Mabey  v.  Adams 3ob 

Mackv.  Parks Vn-bin    aqq 

Mackey  v.  Mackey 70,  310,  639 

Madison,  etc.,  V.  Baptist,  etc bbO 

Magee  V.  Cutler 443 

2\IaKhee  v.  Camden 8a7 

Magre  v.  Holland 397 

Mahew  v.  Crickett 698 

Mahew  V.  Robinson 496 

Mahauey  V.  Penman ■■■;  31b 

Maine  v.  Cumston 31i,  Sm 

Main  v.  Feathers •  •  •  •  416 

Main  V.  King 343,  703 

Makin  v.  Watkinson 364 

Malcolm  v.  Baker 838,  833 

Malina  v.  Brown 433 

Mallery  v.  Lord 42o 

Mallett  V.  Bateman 6/4 

Mallory  v.  Lampshear 16,  568,  78.5,  786 

Mallof y  V.  Norton  . .   330,  411 

Malonev.  Stilwell 60,  126,  143 

Malouey  V.  Dows 28L  560 


PAGE. 

Maloneyv.  Horan 335,  863 

Malony  v.  Scanlon 399 

Maltby  v.  Harwood •  •  ■  •  398 

Manbv  V.Scott 293,  347 

Manchester  v.  Herringtoa _  •  •    lui 

Manchester  v.  Sahler 371,  .i,J 

Manchester  V.  Storrs 731,  iM 

Mande ville  v.  Riggs '9 

Mangan  V.  Atterton 3bb 

Manhattan,  etc.  V.  Barker 3Jo 

Manley  v.  Gragen 6(4 

Mann  V.  Barrett •••  ^f^ 

Mann  v.  Marsh '>'''  J^** 

Mann  v.  Moorewood 50, 194, 163, 198,  199 

200,  238,  366,  369,  57a 

Mann  V.  Provost ^ 

Manning  v.  Tyler. •  ■  •  ■■■■■■■■■  °^ 

Manning  v.  Whitbeck 188, 199,  322,  720 

Manny  v.  Dunlop 440 

Marble  v.  Lewis f ^n 

Marcley  V.  Shults 480 

Marcos  v.  Pebreer. ■  ■  •  ■  •  •  ■  10» 

Maretzek  v.  Cauldwell 678,  713,  760 

Marfleld  v.  Goodhue oia 

Margetts  v.  Bays oAl 

Mariposa  Co.  v.  Garrison 739 

Markham  v.  Jaudon ■  •  •  •  b8a 

Marking  v.  Needy ^^°'  ^i 

Marquat  v.  Marquat. .  •  ■  ■  •  ^' * 

Marquisee  V.  Brigham "89,  »3i 

Marquis  V.  Cunningham oia 

Marsh  v.  Barnhart 6o8 

Marsh  v.  Benson 73( 

Marsh  V.  Ellsworth 580 

Marsh  v.  Keating 3»u 

Marsh  v.  Oneida,  etc •  ■  •  oj6 

Marsh  v.  Potter 60,  346 

Marshv.Pike f^ 

Marsh  v.  Rulsson 4WJ 

Marsh  v.  Russell »'" 

Marsh  v.  Shute ■■••  ^"9 

Marshall  v.  Gray  193,  ^^i 

Marshall  V.  Moseley 41b 

Marshall  v.  Peters •  •  ■  •  t°" 

Marshall  v.  Sladden ^^'  H, 

Marshall  v.  Sloan oa^ 

Marshall  V.  York 409 

Martin  V.  Hawks ■•••  3b0 

Martin  v.  Houghton 45<J,  6(9 

Martin  v.  Kanouse 4<i7 

Martin  v.  KeenzmuUer •  •  •  •  6^9 

Martin  V.  Leggett 486,  4»7 

Martin  V.  Mattison 139 

Martin  v.  Nutkin 43^^ 

Martin  V.  Wright 489 

Marvin  V.  luglis ]4-' 

Marvin  V.  Treat 4-^ 

Mason  V.  Breslin 4ia 

Mason  V.  Crosby 6bl 

Mason  v.  Denison ga 

Mason  v.  Ditchbourne b94 

Mason  V.  Hand 16^ 

Mason  V.  Ship gj' 

Mason  V.  Whitley ™l 

Massey  V.  Godyer **|* 

Massey  v.  Raynor gyrf 

Masten  V.  Scoville *^^ 

Masterson  v.  Botts ^^7 

Mastersonv.  Hoyt 3iU 

Masterson  v.  Judson *o^ 

Masterson  v.  Mayn 319 

Mastersonv.  Short..  .^. 39a 

Master  Stevedores  v.  Walsh bib 

Mather  v.  Crawford •» 

Mather  V.  Scoles 8bl 

Matsell  V.  Flanigan 4to 

Matterof  Beers 3bB 

Matterof  Bartley... •■•    10^ 

Matterof  Bornsdorf 103,  IU3 

Matter  of  Cavanaugh "^o 


XXVIU 


TABLE   OF  CASES   CITED. 


PAGE. 

Matterof  ChurchSt 687 

Matter  of  Dovle 400 

Matter  of  Henry 333 

Matter  of  Marty  6(51 

Matter  of  McLaughlin 93 

Matter  of  Miller 140 

Matter  of  Patterson 288 

Matter  of  Pie 457,  843 

Matterof  Kickifs  Will.     481 

Matter  of  Warren 40:i 

Matterson  v.  Smith 513 

Mattowan  v.  Bentley 444,  4.58 

Matthews  v.  Aikin 43S 

Matthews  v.  Beach 761,  763,  778 

Matthews  v.  Chicopee  Manuf.  Co 388 

Matthews  V.  Lawrence 673 

Matthews  v.  Matthews 111,300,  400 

Matthews  v.  Terwiiliger 431 

Mattice  v.  Lillie 373 

Mattison  v.  Demarest 318 

Maxwell  v.  E;ist  River  Bank 317,  353 

Maxwell  V.  Farnam 143,  278,  756 

May  V.  Skev 347 

Mayfleld  v.  -Moore 3S3 

Mayiianl  v.  Talcott 171,255,256,  755 

Mayor  v.  Bainburger 395 

Mayor  v.  Erben  467 

Mayor  V.  Graham 670 

Mayor  v.  Hamilton  Fire  Ins.  Co 677 

Mayor  v.  Lyons  161 

Mayor  V.  >ial)ie 637 

Mayor  V.  Park,  etc 843 

Mayor  v.  Pillington 107 

Mayor  v.  Kvan 440 

Mayor  V.  Wood 588,638,  633 

Mead  v.  City  of  Boston 433 

Mears  v.  Landon,  etc 417 

Mechanics',  etc.,  Bank  v.  Dakin 138 

Mechanics'  Bank  v.  Foster 403,  843 

Mechanics' Bank  V.  Seaton 79 

Mechanics'  IVuik  v.  Levy 44 

Mechanics'  &  Farmers'  Bank  v.  Rider. .    63 

Medhury  v.  Watson 387 

Meech  v  St  mm- 71 

Median  V.  Williams 3-iO 

Merchants' P.ank  V.  i^liss 683,  687 

Merchants'  Bank  v.  Xew  York,  etc.,  Co.,  276 

83. 
Merchants'  Mut.  Ins.  Co.  v.  Eaton  . .  .66,    73 

Moridan  v.  Ziiigsen 840 

Mcrriam  V.  Ciinninnrham 351 

Mi.'rri>'k   v.  f{rainard 75 

Mcrrillrld  v.  Cooley 23 

Afcrrill  V.  Houghton      886 

M.MTilt  v.  Bartliolick 68,233,297 

.\f('rrit  V.  Lincoln   698 

Mcnittv.  Seaman 156,  328,623,  695 

.Mersey,  etc.  V.  (Jil)bs 387,  389 

Mt-siTole    V.  Arciier 703 

-Mc-crole  v.  Tynberg 4.45 

Mi-sriil  V.  Uakin 428 

Mi'ssinore  v.  New  York  S.  &  L.  Co.. 319,  343 

M>'t     Railway  v.  Wilson 349 

M.-in.[.olitan  Bank  v.  Lord ...517,  53(i 

M'lil.Htadt  V.  Ninth,  etc 3S5 

M''iimli  V.  .\feusch 561,  840 

Mey.T  V.  Fiet:el fCK 

M' yi-r  V.  Flibsher 841 

M.-v-rv.  Mahr 32', 

Mi'-hliran,  etc.  v.  Eldred 403 

Mi'l.ll.'lirook  V.  Merchants' Bank 29S 

MliMli-Uin  V.  Sherburne 4S1 

Mldiaiirl,  r-t<\,  V.Johnson .170,  413 

M  icr  V.  CartledKO 531,  6a"),  647,  OIS 

"ilr^onv.  U..pe 3a8,  666,  007  : 

>iii    •  ink  V.  D'-nnUtoiin 313 

••        irri  V    U,.||„nl 470 

Ml.  Ill  V.  ."^harp 4t'j  | 

Mill'T  V.  |j,vker..   453' 

ilillerv.  Boar 115 


PAGE. 

Miller  T.  Beekman  60" 

Miller  V.  Case 591,  803 

Millerv.  Cook 168 

Miller V.  Deere..  370 

Millerv.  Easton UJ7 

Miles  V.  Forbes 461 

Miller  V.  Freeborn 037 

.Millerv.  Gamble 698 

Millerv.  Gaston 136,  137 

Miller  v.  Losee 623,  717,  703 

Millerv.  Moore 799 

Millerv.  Stettiner 157,  1.58,  661 

Miller  v.  White 97,  171 

Millikin  v.  Oary 24,  25,    48 

Millikin  v.  Dehon 394,  085 

Millikin  V.  Thorndike 365 

Mills  V.  Brooklj'u 687 

Mills  V.  Garrison .50(i 

Mills  V.  Lewis 376,  413 

Mills  V.  Lynch 433 

Mills  V.  New  York,  etc 385,  448 

Mills  V.  Pearson 88 

Miln  V.  Vose 648 

Milnor  v.  Metz 70 

Milton  V.  Hudson  River,  etc 319 

Minor  v.  Mechanics,'  etc 133 

Minor  V.Terry 47,    .50 

Mitchell  V.  Hayne 355 

Mitchell  V.  Oldfleld 630 

Mitchell  V.  Weed 794 

Mitchell  V.  Williams   333 

Moffattv.  Strong *■ 473 

Monahan  v.  Story '71 

M  onell  V.  Burns 484 

Monroe  v.  Reynolds 343,  445,  464 

Monson  V.  Williams 204 

Montague  V.  Bassett 333 

Montague  V.  Flocton 871 

Monte  Allegro,  The 473 

Montgomery  County  Bank  v.  Albany 

City  Bank 774,  836 

Montgomery  V.  United  States 381 

Moody  V.  ?Iayor 365 

Moon  V.  McKibbin 843 

Mooneyv.  Hudson  River,  etc 388 

Mooney  V.  Misser 067 

Moore  v.  Bennett 209,  310 

Moore  v.  Burrows 4.34 

Moore  v.  Campbell 405 

Moore  v.  Cross 337,  338 

Moore  V.  Eldred 4.>8 

Moore  V.  Hamilton, 104,  389 

Moore  v.  Moore 347,  398,  489,  491 

Moore  v.  Noble 193,  231,  841 

Moore  v.  Prance 113 

Moore  V.  Quint 688 

Moore  v.  Smith 140,  708. 

Moore  V.  Woolsey 693 

Morehouse  v.  Ballou 120,  131,137,  6()4 

Morehouse  V.  Crilly 208 

Morewood  V.  .Tewett 5;^ 

Morah  V.  McClearns 460,  869,  879 

Moran  V.  Anderson 7.56 

Moran  V.  Morrissey 340 

Moran  V.  Rennard 4*-:'..! 

Morange  V.  Morris 415 

Morgan  v.  Birnie 486 

Moru'an  v.  Groff 383 

Morgan  v.  Loland 815,  830 

Morgan  V.  Plumb 673 

Morgan  v.  Rowlands W)3 

Aforiran  v.  Skidmore 403,  403,  073 

.Morgan  v.  Thorne 3.53 

Morhn-v.  French HI,  4tH 

Morlevv.  Law Cul 

Morre'll  V.  Garrelly 388 

IMorrcll  V.  Irving  Fire  Ins.  Co 564,  8!J3 

Morris  V.  Ashbee 314 

Morris  V.  Bank  of  England 373 

-Morris  V.  Crawford 64 


TABLE   OF   CASES   CITED. 


XXIX 


PAGE.  I 

Morris  V.  Law 400  | 

Morris  v.  Parker 535.  540  ■ 

Morris  V.  Third  Avenue,  etc 409  [ 

Morris  V.  Van  Voasc fiSH 

Morris  v.  Walker k 337 

Morris  v.  Wright 314  | 

Morrison  v  Buchanan SH 

Morrison  V.  Glasgow  Comm'rs 898 

Morrow  v.  Campbell 890 

Morrow  V.  Reed 891 

Morse  V.  Aldrich 480 

Morse  v.  Peasant 334 

Morss  V.  Jacobs 704 

Morton  v.  Cameron 193 

Morton  v.  Gloster 4()0 

Morton  v.  Woods 593 

Moseley  V.  Alston 83 

Moseley  v.  Marshall 467 

Moseley  V.  Moseley (i9 

Moseley  V.  Rendell 339 

Moses  V.  Banker.     40() 

Moses  V.  Read 471 

Moses  V.  Sweet 890 

Moses  V.  Trice 368 

Mosey  V.  City  of  Troy 391 

Moshler  v.  TJtica,  etc ...   390 

Mosselman  v.  Caen 363 

Mosser  t.  Corwin  . 843 

Mosteller's  Appeal 398,  488 

Mott  V.  Burnett 517,  541 

Mott  V.  Coddinffton 465 

Mott  V.  Dunn 128,  J 35 

Mott  V.  Hudson  River,  etc 385 

Mott  V.  Palmer 460 

Mottrain  V.  Mills 73 

Moule  V.  Garrett  .  ..  398 

Mount  V.  Derrick 8:J3 

Mount  V.  Lyon      885 

Mnuntford  V.  Holland  .. 671 

Mousler  V.  Harding 679 

Mowers  v.  Fethers 873 

Muchlei- V.  Miilhollen 235,  460 

Mudgett  V.  Bay  State,  et« 409 

Mudry  v.  Newman 300 

Muir  V.  Leake,  etc.,  Orphan  House 114 

Muklan  v.  Doty 25;3 

Mulhado  v.  Brooklyn,  etc 385 

Muiler  V.  Eno 471,  473 

Mullett  V.  Hunt 4b3 

MuUett  V.  Mason 470 

Mulligan  v.  Elias 396 

Mulvehall  v.  Millward 435 

Mumford  V.  Brown 444 

Muraford  V.  Oxford,  etc 417 

Mumford  v.  Sprague 114 

Muiicey  v.  Dennis 319 

Munger  v.  Hess '. 351,  459 

Munn  V.  Barnum 734 

Munn  V.  Isle,  etc 353,  431 

Munn  V.  Mechanics 630 

Munroe  v.  Easton 384 

Munro  v.  Potter 681 

Munsell  V.  Lewis 67 

Murphy  V.  Ball 381 

Murphy  v.  Carralli 374 

Murphy  V.  Merchant 338 

Murray  v.  Burling 458 

Murray  V.  Hay 86 

Murray  v.  Knapp 353 

Murray  V.  Mumford 146 

Murray  v.  Smith 680 

.Murray  V.  Thomas 563 

Muscott  V.  fiunge  483 

Mussina  v.  Clark 253 

Mutual,  etc.  v.  Mayor,  etc 443 

Myatt  V.  Saratoga,  etc.,  Ins.  Co 547,  786 

Myer  V.  Pigel 564 

Myers  V.  Burns 319,330,633,  694 

Myers  v.  Davis 639 

Myers  V.  Malcolm 345 


PAGE. 

Myersv.  Myers 143,  .335 

Mygatt  V.  Wilcox 683 

Mynders  V.  Snook 630,  661 


Nash  V,  Fredericks 

Nash  V .  McCauley 

Nash  V.  Russell  ' 

Nassau  Bank  v.  Broadway  Bank 

National,  etc.  V.  Hart 

National,  etc.  v.Ingraham 

National  Bank  V.  Bangs 

National,  etc.  v.  Fourth  Nat.  Bank 

Nayler  v.  Mcjrtimore 

Naylor  v.  Winch  .   

Neale  v.  Sealey 451, 

Needham  v.  Frazer 

Neefus  v.  Kloppenburgh 

Neff  V.  Clute 

Neil  V.  Thompson 

Nelson  v.  Bostwick 

Nelson  v.  Ck  ugh 

Nelson  v.  Cowing 

Nelson  v.  Swan 

Nelson  v.  Von  Bownhurst 

Nelthorpe  v.  Holgate 

Nesbitt  V.  Hllser 

Nesbi  tt  V.  Ho  we 

Neustadt  v.  .Joel 

Neville  v.  Kelley 

Nevins  v.  Depierres 

•Newall  V.  Salman 630, 

Newall  v.Tomlinson 

Newberry  v.  Garland 

Newberry  V.  James 

Newby  v.  Oregon  Cent.  R.  R.  Co 

Newcomb  V.  Brockett 

Newcomb  v.  Clark 

Newcomb  v.  Cramer 

Newell  V.  Fowler 

Newell  V.  Wheeler 356, 

Newman  v.  Alvord 446, 

Newman  V.  Board  of,  etc 648, 

Newman  V.  Ogden 

Newman  v.  Otto 574, 

Newson  v.  New  York,  etc 

Newton  v.  Bronson 

Newton  v.  Pope 

Newton  V.Wales 323,  410, 

New  Bedford  v.  Chase 

New  Haven,  etc.,  v.  Quintard 409, 

New  York,  etc.,  v.  Covert 307, 

New  York,  etc.,  v.  Forty-Second,  etc.. 

New  York,  etc.,  v.  Merritt 

New  York  Cent.  Ins.  Co.  v.  Nat.  Prot. 

Ins.  Co 

New  York  Cent.  R.  R.  v.  Saratoga,  etc. 
New  York  Cent.,  etc.,  Co.  v.  Sohuvler.. . 
New  York  Dry  Dock  Co.  v.  Mcintosh. . 
New  York    Ice  Co.  v.  Northwestern, 

etc.,  Ins.  Co 40,140,374, 

Nichol  V.  Godts 

Nicholl  V.  Mason . ... a 363. 

Nichols  V.  Brown 

Nichols  V.  Dusenbury 

Nichols  V.  Jones 537,  541,546,  ,547. 

.591,  593,  646,  647,  648,  6.50, 

Nichols  V.  Michael 130, 

Nichols  V.  Middlesex,  etc 

Nickerson  v.  Harriman 

Nicoll  V.  NicoU 

Nicols'  Case 

Niles  V.  Battershall 

Niles  V.  Perry 

Niles  V.  Randall 

Niles  V.  Smith 

Nixon  V.  Jenkins 

Nixon  V.  Nixon 394, 

Noble  V.  Holmes 

Nodine  v.  Doherty  

Noelv.Isaac 


309 
150 
111 
308 
433 
403 
865 

a34 

294 

564 

483 
77T 
389 
453 
333 
486 
470 
149 
888 
337 
305 
403 
138 
430 
663 
633 
377 
445 
352 
859 
703 
168 
394 
344 
393 
447 
733 
313 
761 
385 
739 
303 
563 
304 
563 
080 
409 
466 

787 
430 
110 


378 
465 
.363 
137 
638 
586 
773 
309 
385 
397 
43T 
895 
63 
100 
114 
843 
169 
.395 
864 
675 
333 


XXX 


TABLE  OF   CASES   CITED. 


PAGE. 

Noelv.Murray 687,  6S8 

Notion  V.  Western  R.  R.  Co 795 

Norbury  V.  Seely   611 

Norris  V.  Kennedy 831 

N(>rthmn  V.  Ilowdon 705 

Northern  Hank  v.  Wri^'ht 63 

Northdet'tv.  Cromwell 393,  394 

Northrop  V.  Burrows &S6 

North  Western,  etc.,  V.  Sharp 298 

North  Western,  etc.,  v.  Whiaray 440 

Norton  V.  Cary 161 

Norton  v.  Sewall 391 

Norton  V.  WisNvall 3Co 

Norti  >n  V.  Woods 595 

Nosserv.  Corwin 309,  8ii 

Nottehohm  v.  Maas G2i 

Nowlen  V.  Colt 444 

Noxon  V.  Bentley 786,  787 

Noyes  V.  Clark 703 

Nute  V.  Hamilton 677 


Oakes  v.  Turquaad .. 

O  ikley  V.  Aspinwall 

Oikley  V.  Morton 180,  405, 

O'Urien  V.  llogan 

O'Brien  v.  Lloyd 

Ockford  V.  Barreli 

Oertel  v.  Wood 314, 

OlTard  v.  Davies 'Mi, 

C)t;den  v.  Lee 

Ogden  V.  Marshall 

OfTdensburgh  Bank  v.  Paige 735, 

Otrilvie  v.  Knox,  etc 

Olcott  V.  Carroll 268,  804,  805, 

Olcoit  V.  Tiotra  K.  R.  Co 

Olendorf  v.  Cook 330, 

Oliver  v.  Oliver 366, 

Olmsted  v.  Webster 

Olssen  V.  Smith 

Onderdoiik  v.  Mott 

Onkerdonk  v.  Emmons 

Ondenlonk  v.  Voorhios 

Ontario  Bank  v.  Roots 

O'Reillyv.  King 383, 

O'lteilly  V.  McChestiey 478, 

Ormsbee  V.  Brown 565,  656, 

Ormsby  v.  Douglass 57:i, 

Orne  v.  Tovvnsend 

Osborne  V.  llobbins 66;^, 

O.sby  V.  Conant SU, 

Osgood  V.  Lay  ton 139,  339, 

Osgood  V.  Ogden 

Osgood  V.  Wittlesey 776, 

Osincup  V.  Nichols 

Osterhout  V.  Lanning 

Ostrom  V.  Bixby ..  .  597, 

Oswald  V.  Mayor,  etc. 

Otisv.Cusack 

Otis  V.  Hiti;hcock 

Otis  V.  Uoss. . .  265,  533,  545,  546,  598,  608 

Otis  V.  Still 26^ 

Outhout  V.  [iailard 

Overend  V.  Oibb 

OverL-nd  Gurney  Cc.  v.  Gibbs 

Overseers  v.  Beedle  

Overton  V.  T)unn 

Oviiitt  V.  Hughes 

Owen  V.  Bowcn '. 

Oweu  V.  New  York,  etc .!.... 

Oxford  V.  Cronand.  .  414, 


PAGE. 

Paine  v.  Packard 697 

Paine  v.  Smith 765 

Paine  \.  Voorhees 687 

Palen  V.  Bushnell 141 

Palen  v.  Johnson 193,  411 

Palmer  v.  Andrews 564,  567 

Palmer  V.  Avery 370 

Palmer  v.  Davis 61,  133,  757,  76« 

Palmer  V.  De  Witt 406 

Palmer  v.  Fort  PiaiD,  etc.,  rik.  Rd.  Co.,    95 

Palmer  V.  Jairmain 457,843 

Palmer  v.  Murray 104 

Palmer  V.  North 170,349,  668 

Palmer  v.  Palmer 294 

Palmer  V.  Smedley 788 

Pangburn  v.  Bull 139 

Panlin  V.  Holland 449 

Pardee  v.  Schenck 714,  7al 

Pardee  V.  Van  Anken 413 

Pardo  V.Osgood 339,618,  733 

Paris  v.Salkeld 887 

Parish  v.  Tooker 414 

Parellv.Halforty 738 

Park  V.  Johnson 436 

Park  V.  Morris  Axe  &  Tool  Co 470 

Parker  v.  Bradley 696 

Parkerv.  McClure 588,  664 

Parker  v.  Meech 892 

Parker  V.  Raymond 309,  310 

Parker  v.  Totteu 173,  325 

Parker  v.  Walrod 454,  863 

Parkinson  V.  Hanbury  291 

Parks  V.  Parks 58 

Parmagiori  v.  Parmagiori 3:25 

Parsons  V.  Briddock 438 

Parsons  v.  Nash 630 

Partenheimer  v.  Van  Order Ill 

Partridge  v.  Court 110 

Partridge  v.  Gildermeister 304 

Partridge  v.  Hayuroft 13 

Partridge  V.  Menck 447 

Partridge  V.  Partridge 466 

Partridge  v.  Scott 449 

Partridge  v.  Osborne 388 

Passinger  V.  Thorburn 470 

Patchin  V.  Peck 681,745,  831 

Patience  V.  Townley .566 

Patrick  v.  Coetrick 4.'i0 

Patrick  v.  ISIetcalf 381 

Patten  v.  Gurney 143 

Patterson  v.  Patterson 488,  843 

Patterson  v.  Scott 373 

Pattison  v.  Adams 316,  318 

Pattison  v.  Guardians 690 

Pattison  v.  Taylor 563 

Paul  V.  Frazier 436 

Paul  V.  Hatfe-ty 337 

Pauling  V.  Mayor,  etc 487 

Pauly  V.  Turnbull 488 

Puvne  V.  Able 666 

Payne  V.  Sheldon 860 

Payne  v.  State 333,  ftsi 

Payson  v.  JlacComber 573 

Peabody  v.  IJIoomer 620 

Peabody  V.  Roberts 413 

Peachy  V.  Brown 335 

Pearr-e  v.  Chamberlain 71 

Pearce  v.  Morris 413 

Pearl  v.  Deacon. 698 

Pearl  V.  Wells 693 

Pearse  v.  Pettis.   .  309,  44-1.  445,  609,  700,  703 

Peck  V.  Brown     338,  310,  443,  588 

Peck  V.  Carpenter 444 

Peck  V.  Cowing 661 

Peck  V.  FJder 86 

Peck  v.  Minot 588.  636 

Peck  V.  Newton 330 

Peck  V.  TiB'any .097.  673 

Peck  V.  Lemons 346 

Pellecat  v.  Angell 67i 


TABLE   OF   CASES   CITED. 


XXXI 


PAGE. 

Pelouze  V.  Ste'wart 485 

Pendleton  V.  Empire,  etc 4;*i 

Penn.  v.  Buffalo,  etc O'Jt? 

Perm.  V.  Ward »'•';' 

Penn.K.  U.  Co.  v.  Buntine 400 

Pennington  v.  Gibson ;;  -.VVV  VnV  -^1 

People  V.Albany,  etc 14,  339,  408,  o'JO 

People  V.  Alberty 4(o 

People  V.  Assessors — j*-; 

People,  etc.,  v.  Balch •  •  •  ••  4-to 

People  V.  Banker     568,701,  i3o,   ui 

People  V.  Bennett ...  159,  160,  4o4 

People  V.  Bosart 4fW 

People  V.  Bostwick ■  •  ■  •  o'y 

People  V.  Brandreth 63^,  bU 

People  V.  Brennan oSl 

People  V.  Brooks 4(),) 

People  V.  Brothersou 3-:; 

Peoplev.Call 4.)0 

People  V.  Campbell •  •  •  o"* 

People  V.  Clark '^' tH 

People  V.  Collins 4^:^ 

People  V.  Commissioners.  44'i 

People  V.  Cram i,i--„\V  Y^, 

People  V.  Cunningham 345,346,  4ol 

People  V.  Dolan 443 

People  V.  Kelly •■  ■  wl 

People  V.  Kerr •  409,  443 

i'eople  V.  Laws 94,409,  443 

People  V.  Mayor 73,  330,  336,  430,  443 

People  V.  McCumber 546,  648 

I'eople  V.  Miller *^^'  ^!o 

People  V.  Miner 44.3 

People  V.  New  York,  etc 437,  831 

People  V.  Norton ■•    9* 

People  V.  Schuyler 43( 

People  V.  Shall •  1<J6 

People  V.  Supervisors 9a,  ~04 

People  V.  Tioga  Com.  Pleas. 65 

People  V.  To wnseud 94 

People  V.  Troy,  etc 96 

People  V.  Vilas 440 

People  V.  Walker 180,209 

People  V.  Woods 101,  lU,  833 

People's  Bank  V.  Adams 858 

People  ex  rel.  Yates  v.  Board  of  Town 

Auditors  of  Canajoharie 71 

People  ex  rel.  Buffalo 44.3 

Percivalv.  Stamp 678 

Perkins  v.Coddington 317,  3o3 

Perkins  V.  Giles 501,  563 

Perkins  v.  Mitchell 696 

Perlee  V.  Onderdonk 439 

Perriu  v.  New  York,  etc 409 

Perry  V.  Chester. 630,  633 

Perry  v.  Truefltt 446 

Person  v.  Civer 313 

Persons  V.  Warren 54,    93 

Peters  v.  Delaplaine 894 

Peters  v.  Whitney 484 

Peterson  v.  Chemical  Bank 25,  398 

Peterson  v.  Clark 475 

Peyton  v.  Mayor _.  549 

Phalen  V. Dingee ..125,136 

Phelan  v.  Alb.  &  Susq.  B.  R.  Co 487,  691 

Phelps  V.  Sproule 389 

Phelps  V.  Van  Dusen 416 

Pheno  V.  Poppenwell  693 

Philips  V.  James 666 

Phillips  V.  Bcrger 662,  603 

Phillips  V.  Briard 319 

Phillips  V.  DeGroat. ......    448,  449,  450,  466 

Phillips  V.  Doolittle 703 

Phillips  V.  Duke  of  Bucks 337 

Phillips  v.Foxall 897 

Phillips  V.  Gorham 24.40,  (wl 

Phillips  V.  Peters 30(; 

Phillips  V.  Rens.  &  Saratoga  II.  R 880 

Phillips  V.  Simmons 348 

Phillips  V.  amith 474,  475 


Phillips  v.Sture -.■  340 

Phillips  V.  Suydam 830,  8*) 

Phillips  V.Thompson 434 

Phillips  V.  Trull ••  *« 

Phillipsv.  Wilpers 391,  4.dd 

Phillipson  v.  Gibbons 4.34 

Phincle  V.  Vaughn 836 

Phinney  v.  Phinney ■  •  •  •  430 

Phoenix  Bank  v.  Donnell. .  .336, 314,  3.)0,  563 

743,  753 
Pickard  v.  Collins..  33.5,  365,368,  396,  4.-35,  460 
Pickering  v.  Rudd 451,  705 

?!l?^l^:Kie.-.v.v.;;;.v:;;;;.33d:33i;| 

Pierson  v.  Boyd 5^0 

Pierson  V.  Cooley ^ji; 

Pierson  v.  Floag 4(i3 

Pierson  v.  Hutchinson 368 

Piggott  V.  Kemp 665 

Pike  V.  Van  Wormer 149,  209,  310 

Pilie  V.  New  Orleans 418 

Pilmor  V.  Branch  Bank 438 

Pinchin  v.  London,  etc 4.')1 

Pinckney  V.  Wallace 645 

Pinoombev.  Rudge ol7 

Pindarv.  Black lo7 

Pinev.  Smith 69~. 

Piper  v.  Poppenhausen 441 

Pitcher  v.  Turin,  etc 38^ 

Pittv.Gentle 437 

Pitts  v.  Congdon 4.38 

Pittsv.  Munt ■•■•  o7o 

Pixley  v.  Clark *'"' tn. 

Place  V.  Butternuts •■•   '93 

Plan+,  V.  Schuyler 6y3,  687 

Piatt  V.  Stout '0,  38|J 

Piatt  V.  Walrath 16« 

Plattv.  Wells 666 

Plumb  V.  Harrop ••••  546 

Plumb  V.  Whipples 830,  831 

Plum  mer  v.  Webb 39S 

Plowden  V.  Thorp o8j. 

PoUak  V.  Gregory 350 

Pollen  V.  LeRoy • 34« 

Pollock  V.  National  Bank ^ 

Pollock  V.  Stables 319 

Pondv.  Leman 4"' 

Popenhousen  V.  Seeley 464 

Popplewell  V.  Pierce 394 

Port  Carbon,  etc.,  V.  Groves 474 

Porter  V.  MoCready ^99 

Porter  V.  Parks gSb 

Porter  v.  Williams ■  •  •  •  339 

Post  V.  Hover 'fir 

Post  V.  Martens 415 

Post  V.  Pearsall 480 

Potter  V.  Carreras 7^6 

Potter  V.  Commissioners 341 

Potter  V.  Davis 95 

Potter  V.  Kitchen od^ 

Potter  V.  McCready 59b 

Potter  V.  Merchants'  Bank 389 

Potter  V.  Seymour •  -  •  384 

Potter  V.  Van  Vranken  .  ^^'  q?S 

Poultney  V.  Randall ^2V 

Powell  V.  Deveney •    ^'^ 

Powell  V.  Finch j^ 

Powell  V.  Smith •  ■  •  •  •  •  •  •_•  699 

Power  V.  Hathaway Ill,  33.%  680 

Powers  V.  Stanton '^•>o,  3Hb 

Pozzoni  V.  Henderson 45^ 

Prater  V.  Miller ^^'  ^nn 

Prattv.  Foote 6^" 

Prattv.IIill ^ 

Pratt  V.  Patterson ._. ....     •  •  •  •  •  •  •  •  oOo 

Pratt  V.  Potter 23a,  451,  460,  475,  704 

Prentice  v.  Harrison 8.3 

Prentiss  V.  Farnham l"i 

Prescott  V.  Dole "71 

Prescolt  V.  V*iUiams 'i'C 


xxxn 


TABLE   OF   CASES    CITED. 


PAGE. 

Present  v.  Bangs 418 

Price  V.  Hewett 3.51 

Price  V.  Martin 866 

Price  V.  Mount V07 

Pricliurd  v.  .State 363 

Prince  Albert  v.  Strange 407 

Prince  v.  Ciija.s 363 

Prim-e  V.  Niciiolson 887 

Prindle  v.  Caruthers 176,  515,  517 

Proctor  V.  Hodson 706 

Provost,  etc.,  V.  Hallett 364 

Prudden  v.  Pitv  of  Lockport 154,  821 

Pruitt  V.  Miller 418 

Pruvn  V.  Copjstock 683 

Puu'iley  V.  Alkin ...  110,145,263 

Pugsley  V.  .Murray 305 

Piilen  V.  Reynolds. 326,337 

Puller  V.  Easion 904 

Pullman  v.  Mayor 443 

Pulver  V.  Harris 697 

Punipelly  v.  Phelps 293 

Pun-ha.se  V.  Bellows 427 

Purdy  V.  Carpenter 211,  580,  765 

Purves  V.  Moltz 

Putnam  V.  De  Forest 713,  726 

Quackenbush  v.  Ehle 672 

Quackenbush  v.  Leonai'd 663 

Queen  v.  Rabcock 819 

Queen  V.  Stoke,  etc 400 

Quick  v.  Grant 559 

Quigley  V.  Walter 133 

Quin  V.  Chambers..   651,  6.54 

Quin  V.  Lloyd 529,564 

Quin  V.  More 391 

Quintard  v.  Newtoc...  192,  331,  268,  469,  749 
Quirk  V.Holt 386 

Rae  V.  ■Washington  Mutual  Ins.  Co 721 

Kadcliff  V.  Mayor 449 

Kadley  V.  Houglitaling 288,6(50 

Itad way  v.  Mather 271,  536 

Kailroad  Co.  v.  Harris 733 

Kailroad  Co.  v.  Kelly 397 

Uamaley  v.  Leland oo-t 

Kanay  v.  Alexander 7ir3 

Randall  v.  Crandall 6(51 

Randall  v.  Snyder 393 

Randall  V.  Sweet 351 

Ranger  v.  Great  W.  Ry.  Co 291,  487,  488 

Ranneyv.  Smith 170,  265,  639 

Ranorv.  Clark 774 

Ransom  v.  Nichols 339 

Itaphael  v.  Thames 4;J3 

Ratdiir  V.  Davis 407 

Itathbon  v.  McConnell 4.50 

Rathbone  v.  Stedman 701 

Rathbun  v.  Rathbun 432,  4,34 

Raymond  v.  Fitch ;$J9 

Rayner  v.  Clark 818 

Raw;<on  V.  .Morse  4,50,  704 

Rawson  v.  Rawson 623 

Raw.Htone  v.  I'arr 441 

Rawston  V.  Taylor 477 

lUv  V.  Adden 348 

Ray  V.  Ayres 364,  417 

Ray  V.  Thompson 434 

Ifiiymond  v.  Fitch 68 

Raymond  v.  Minton 683 

Rayner  v.  Clark 734,  753,  786,  8:J4 

Ilea  V.  Sheward 4,50 

Rea,  etc.,  v.  Smith 872,  889 

Reah  V.   McAllister 62.5,  626,  637 

Reail  V.  .lawdon 630 

Read  V.  Kennedy 351 

Bead  V.  I'ope 208,  363 

Reado  v.  Sweetzer 135,  367 

Ready  V.  Stt! wart 661 

Reason  V.  Wied  man     ..   ...... \.[..  489 

Rector,  etc.,  V.  Crawford 438 


PAGE. 

Rector  of  Trinity  Church  v.  Higgins...  303 

317 

Rector,  etc.,  v.  Mayor,  etc 466 

Kedde  V.  Norman 446 

RedUeld  v.  Middleton 401 

Redlield  v.  Supervisors 443 

Redfleld  V.  Tegg 305 

Re  U.  S.  Company 303 

Reed  v.  Bank  of  Newburgh 639 

Reed  V.  Board,  etc 179 

Reed  v.  Watson 630,  649,  650,  051 

Reed  V.  Stryker 109,  143 

Reed  v.  Randall 435 

Rees  V.  Berrington 698 

Reesv.  Watts 695 

Reformed,  etc.,  V.  Brown 437,  438 

Reformed,  etc.,  V.  Parkhurst 430 

Reg.  V.  Barret 365 

Reg.  V.  Bolroyd 469 

Reg.  V.  Chamberlain 391 

Reg.  V.  Dant 296 

Reg.  V.  Light 334 

Reg.  V.  Spencer 391 

Reg.  V.  Walker 333 

Keid  V.  Evergreens 83 

Raid  V.  GifTord 108 

Reid  V.  Stryker 140 

Reilly  v.  Rucker 717,  763 

Reimers  v.  Ridner 405,  435 

Reiners  v.  McDonald 434 

Relyea  V.  Beaver 232 

Remsen  v.  Beekman ;  697 

Reus.,  etc.,  Co.  v.  Wetsel ..  246,  248,  249,  593, 

594 

Renvrick  v.  Cooper 103 

Requa  v.  Holmes 99,  103 

Requa  v.  Guggenheim 175 

Re vick  v.  Kern 479 

Resor  V.  Johnson 489 

Reubens  V.  Joel 24 

Rex  v.  McDaniels 483 

Rex  V.  Hopkins 400 

Rex  v.  Kelderby 676 

Rex  V.  Soper 400 

Rex  V.  Stanton 408 

Reynall  V.  Sprye 353 

Reynolds  V.  Doyle 874 

Reynolds  v.  Dunkirk,  etc.,  R.  R.  Co....  507 

Reynolds  v.  Freeman 795 

Reynolds  v.  Reynolds 325 

Reynolds  v.  Schaltz 395 

Reynolds  v.  Shuler 458 

Reynolds  v.  Sweetzer 347 

Re>'nolds  v.  Ward 169 

Reynolds  v.  Welch 339 

Reznor  V.Webb 72,  76,  293 

Rheel  v.  Hicks 378 

Rhoades  v.  Woods 129 

Rhodes  V.  Bate 336 

Ri ciirt  V.  Townsend  et  al 119 

Rice  V.  Bunce 394 

Ri(^e  V.  Dewey 438 

Rice  V.  Hollenback 663 

Rice  V.  O'Connor 760 

Rice  V.  Shepherd 348 

Rich  V.  Baker 451,  474 

Rich  V.  BiiaterUeld ..  365 

Richard  v.  Manhattan,  etc 677 

Richard  v.  St;inton 491 

Richards  v.  Kdrick...  236,  256,  257,  756,  806 

Richards  v.  Warring 125,  327,  338 

Richardson  V.  Carpenter 165 

Richardson  v.  Dubois 3J8 

Ricliardson  v.  Hastings 97 

Richardson  V.  Jackson 703 

Richanlsnn  V.  Larpent 83 

Itic-hardsMn  v.  Mead 75 

Rich.irdsoti  V.  Northrop 697 

Richardson  v.  Wilton 271,  541,  542,  6,53 

Richmond,  etc.  v.  Vanderbilt 375 


TABLE   OF    CASES    CITED. 


XXXUl 


378, 

ire,'  793, 


Riohmondville     Union     Seminary    v. 

Brownell 

Richter  v.  Foppeiihiiiisen 

Richtmyer  V.  ilaskins 5-17, 

Riclitmyer  v.  Morse 

Kiohtinyor  V.  He:n-*en 71,5153, 

Riclitmyer  v.Klohtmyer..  108,  110,  745, 

75i, 

Ricltet  V.  Railway 

Riclder  v.  Whillock 159,  193, 

Kider  v.  Mason 

Rider  v.  Pond 

Ridgway  v.  Bulkley 98, 

Rinchey  v.  Stryker 128,  565, 

Ring  V.Steele 

Ripley  V.  ^tna  Ins.  Co 

Ripple  V.  Gilborn 63, 

Rising  V.  Dodge 

Ritchie  v.  Garrison 149, 

Ritter  v.  Cushman 393, 

Roacii  V.  Lafarge 

Roach  V.  New  York,  etc 

Roache  v.  Johnston 

Robbins  v.  Luce 

Robbing  V.  Mount 351,  364,  365, 

Robbins  v.  Richardson 

Robbins  v.  Wells 97,  387,  388, 

iloberts  V.  Bury  Commissioners...  406, 

Roberts  v.  Carter 

Roberts  v.  Fisher 

Roberts  v.  Good 

Roberts  v.  Morrison 

Roberts  v.  Randel . 

Roberts  V.  Rose 444,  679, 

Iloberts  V.  White , 401,  633, 

Robertson  v.  Smith 

Robinson  v.  Chamberlain 70, 

Robinson  v.  Corn  Exchange 516. 

Robinson  v.  Cushraan 3'Jo, 

Robinson  v.  Davidson 

Robinson  v.  Frost 51.5,  534, 

Robinson  v.  Judd 713,  733,  736, 

Robinson  V.  Plimpton  ..     

Robinson  V.  Ray  nor 398,  488, 

Robinson  v.  Robinson 1.33, 

Robinson  v.  Ryan 

Robinson  v.  Smitla 109, 

Robinson  v.  Stewart 317, 

Robinson  v.  Trull 

Robinson  v.  Weeks 

Robinson  v.  West 

Robinson  v.  Wheeler 475, 

Robinson  v.  Woodgate 

Robson  V.  Drummond 

Robson  V.  Whittingham 

Rochester  City  Bank  v.  Suydara 23, 

38,  41,  109, 
Rochester,  etc.,  R.  R.  Co.  v.  Beckwith. . 

Rocks  V.  Atease 

Rockwell  V.  Brown 

Roddy  V.  Williams 

Rodee  v.  Wade 

Rodgers  v.  Jones 

Rodick  V.  Gandel 

Rodriques  V.  Melhuish 

Roe  V.  Hawson 

Roe  V.Martin  466, 

Roe  V.  Kodgers  

Roe  V.  Washington  Mut.  Ins.  Co 

Roeder  v.  Ormsby 

Rogers  v.  Hogan 

K(  :4eri  V.  Iniiabitants,  etc 

Sogers  v.  Lanuford , 

ilDgera  v.  McLean 

Rogers  v.  Patterson 

Rogers  v.  Rogers ,..  111,831, 

Rogers  v.  Taylor 

Rogers  v.  Traders'  Ins.  Co... 72, 

Rogers  v.  Van  Hoesen 


PAQE. 

itome  Exchange  Bank  V.  Eames. . .  238,  4JI 

561,  787 

Rood  V.  New  York,  etu ...      40« 

Rooney  V.Alexander 566 

Rooney  v.  Second  Av.  R.  R.  Co 427 

Root  v.  Foster 243,  244,  348 

Root  V.  Marine 96 

Rorke  V.  Russell 97 

Rosboro  V.  Peck 8.33,  840 

Roscoe  V.  Maison 61,  283,  711 

Roscorla  V.  Thomas  473 

Ri)se  V.  Bell 337 

Rose  V.  Daniels 663 

Rose  V.  Rose 489 

Rose  V  United  States  Telegraph  Co  . . .    74 

Rose  V.  Watson 366 

Rosebrooks  V.  Dinsmore 56 1,  841 

Rosenthal  V.  Brush     58.5,587 

Rosevelt  v.  Draper 443,  443 

Rose velt  v.  New  York,  etc 701 

Ross  V.  Cassidy 1-30,  309 

Ross  V.Mather 193,231 

Ross  V.  Mayor 291 

Ross  V.  Union  Paciflc,  etc 4;51 

Rosseter  v.  Cooper 484 

Roth  V.  Palmer 141,  191,  (J69 

Roth  V.  Sloss   838,  8:'i,  839 

Koulston  V.  McClelland 

Rowan  v.  Lytle   693 

Rowe  V.  Smith ,54 

Rowe  V.  Stevens 8.55 

Rowland  v.  Phalon     180,  309 

Rowles  V.  Senior 300,  453 

Ruddock  V.  Low 391 

Rue  V.  Perry 863 

Ruse  V.  Mutual  Benefit  Life  Ins.  Co. . .  436 

Russell  V.  Allen 443 

Russell  V.  Buck 169 

Russell  V.  Butler 831 

Russell  V.  Carrington  343 

Russell  V.  Clapp 269,  537,  538,  569 

Russell  V.  Pistor '168 

Russell  V.  Spear 89 

Russell  V.  Stewart 418,  423 

Rust  V.  Eckler 435 

Ruatv.Morse 383 

Rutter  V.  Puckofer 58 

Ryan  V.  Fowler 37 

Ryckmau  V.  Gillis 899 

Ryder  v.  Hulse 339 

Ryder  V.Jenny 430,56.3,843 

Rylands  V.  Fletcher 386,478 

Sagary  v.  Dubois 336 

Sage  V.  Mosher 288 

Sailinger  V.  Rusk 532,545 

Salmon  V.  Webb 693 

Saiters  V.  Genln 833 

Salters  v.  Ralph 161 

Sampson  v.  Henry 448 

Samuel  v.  Haliday 109,  315 

Sanders  v.  Coward 811 

Sanderson  v.  Goodrich 675 

Sands  v.  St.  John. .  306,  207,  255,  531,  533,  754 

Sanford  v.  Mayor,  etc 467 

Sanford  v.  Sinclair 288,  6.56 

Sanquirico  v.  Benedltti 353 

Sarah,  Tlie 261 

Sargent  v.  Blunt 843 

Sarles  v.  Sarles 476 

Sarsfleld  v.  Van  Vaughner 24,  737 

Satterlee  V.  Frazer 

Saunders  v.  liite 829 

Savage  V.  Perkins 458 

Savage  y.  Taylor 367,4:54 

Sawner  v.  Sctioonmaker 809 

Sawyer  V.  Chambers 633 

Sawyer  V.  Fernold 169 

Sawyer  v.  Haskell 344 

Sawyer  v.  Jackson 29? ■ 


XXXIV 


TABLE   OF   OASES   OITED. 


PAGE. 

Sawyer  v.  Lyon „•  •    *88 

Sawvcr  v.  VVarner 2.%,  o:;.->,  813 

Savles  V.  Woodin 271,  572,  573,  581 

Sayrcs  V.  Walsh 2*5 

Sea maran  V.  Chicago ^•> 

Sfhacfer  V.  Kerb ^2 

Schafer  v.  Fanners,  etc •  o~. 

SclialTer  v.  McKee 334,  3S} 

Sch.iU.s  V.  Putscher piG 

Sclioive  V.  Kaiser 3U3 

Sohcmcrhorn  v.  Biiell *J0 

ScheiiuThorn  V.  Van  Voiist •_.  460 

Sc-iiLiick  V.  Caraphell 317,  353 

Schencli  V.  Ellin^'wood 9-t 

Suhonck  V.  Naylor ._.  ••  183 

Schermerhorn  v.  Vau  Allen 561,  587 

Sfheniierhorii  v.  Wood 831 

Sfhioffelinv.  Hawkins 629 

Schlussel  V.  Willett 564,787 

Si-liiniat  V.  Hiirforth 683 

Scliiieivler  V.  MoLane 333 

Schneider  V.  Sen ultz 585,  596,  597 

Scliork  V.  Garrett 884 

SchDneldv.  Hernandez 490 

ScholltMd  V.  VanSvckle 662 

Sih'ilelleld  V.  Tenipler 897 

Srhonner  V.  Oiirust 410 

Schooner  lloppett  v.  United  States  —  787 

Schoop  V.  Clarke 193 

Scliroeppel  V.  Corning 458,  459 

Schroeppel  V.  Hopper 434 

Schrotppel  v.  Shaw 438 

Schiihert  V.  Harteau 620 

Scluilhardt  V.  Kemiero 102,  1*3 

ScliulUioferv.  Metzser 348 

Sch lineman  v.  Palmer 347 

Sciiuyler  V.  Marsh 326 

t^chiiyier  v.  Russ 471 

Schwab  V.  Fnrniss 733 

Scoileid  V.  Whiteletrge 309,  310,  857 

Scoctv.  Buncombe 100,  770 

Scott  V.  Guernsey    444,74^5 

Scott  V.  Mayor 387 

Scott  V.  Rogers 313 

Scott  V.  Spears 620 

Scott  V.  Stansfleld 580 

Scott  V.  ITxbridfie,  etc 701 

Scott  V.  Warner 378 

Scuvell  V.  Howell 593,  810 

Scoville  V.  Now 601 

Scranton  v.  Baxter 302 

Scraiiton  v.  Clark 473 

Scribiier  v.  Kelley 295 

Scro^trin  V.  Holland  d22 

Sciid.lor  V.  Gori 6.83 

Seaijfook  V.  Hector 385 

Seacord  v.  Morgan 461 

SeaL'cr  V.  Slingerland 892 

Seaman  V.  Low.   843 

Seario  V.  Lindsay,  etc 376 

Sears  v.  Conover 71,  179 

Seavey  v.  Seavey 489 

Secor  V.  Keller 118 

Soc' )r  V.  Roome 2.52 

Seddon  V.  Connel 112,113 

Set'lcy  V.  Ensle 605 

See  V.  Partridge 139,  276 

Seeloy  V.  People 698 

Solby  V.  Selby 306 

Seidell  V.  Eden 303 

Si'l.lrtii  V.  Pringle 369 

Si'iiimes  V.  Hartford,  etc 677 

."^(•iici-aCo.  Hank  v.  Garlinghouse 819 

S.'v..Taiir-o  V.  GrilBth 2.3.3,  298 

Seward  V.  Miller (U7,  653,  772 

Sewjird  v.  Miller  773 

Kexit.  V.  Provezendo 446,  447 

Sfxi.i  V.  Zj-tt  3H4 

Sexton  V.  Sexton K,i 

Seymour  v.  Cook 354 


PAOR. 

Sevmour  v.  Cowing 09S 

Seymour  V.  Wilson 339 

Shafer  V.  Humphrey     161 

Shafer  v.  Loucks 370 

Shaler,  etc.,  v.  Brewster 100 

Sharp  V.  Ashton &31 

Sharp  V.  Cropsey 398 

Sharp  V.  Freeman 339 

Sharp  V.  Simons 841 

Sharp  V.  Warner 631 

Sharp  V.  Wright 349 

Sharpe  v.  Johnson 406,  410,  425,  691 

Shaver  V.  Brainard 88 

Shaver  v.  McGraw 131 

Shaw  V.  Beveredge 451 

Shawv.Davis aSO,  671 

Shawv.  Jane 248,  266 

Shawv.Jeflrey 867 

Shawv.Laud 383 

Shaw  V.Tobias 463 

Shear  v.  Cutler 475 

Sheehan  V.  Hamilton 588 

Sheehy  v.  Mandeville 403 

Shelden  v.  Carpenter 139 

Sheldon  v.  Adams 150, 151,  594,  833 

Sheldon  V.  Edwards 460 

Sheldon  V.  Havens 98 

Sheldon  v.  Lake 139 

Sheldon  v.  Sherman 433,  451,  491,  493 

Sheldon  v.  Weeks 335 

Shepard  v.  Greaves    498 

Shepard  v.  Merrill 553 

Shepherd  v.  Beecher 304 

Shepherd  v.  Greaves 118 

Shepherd  V.  Walker 737 

Shepherd  V.  Young 399,489 

Shepley  V.  Rangeley 408 

Sheridan  V.  Bean  454 

Sherman  v.  Barnard 668 

Sherman  V.  Brandt 339 

Sherman  v.  Bushnell 648 

Sherman  V.  Johnson 379 

Sherman  v.  Mayor 486 

Sherman  r.  New  York  Central  Mills  ...  533 
542,  546,  650,  654 

Sherman  v.  Willett 454 

Sherman  v.  Wright 871,  893 

Sherwood  v.  Andrews 449 

Sherwood  V.  Seaman 365 

Shibley  v.  Angle 123,  438,  770 

Shields  v.  Pettie 424 

Shipley  V.  Fifty  Associates 392 

Shirley  v.  Bennet 904 

Shoemaker  v.  Benedict 681 

Shoemaker  v.  Board  of  Commissioners  898 

Short  v.  Barry 561 

Short  V.  Hooker 254,  565 

Short  V.  Knapp 389 

Shrewsbury,  etc.,   v.  North  Western, 

etc : 4;31,  697 

Shull  V.  Green 565,  704 

Shiill  V.  Ostrander 903 

Siemon  v.  Schurck 636 

Silliman  v.  Eddy 615,  711 

Silsheev.  Smith 413 

Silsbury  v.  McCoon 4«0 

Silster  v.  Smith 63T 

Silvernail  v.  Cole 169,  668 

Simon  v.  Kaliske 342,  383,  464 

Simond  v.  How 8.55 

Simmons  V.  Cloonan 478 

Simmr)ns  v.  Eldridge 801 

Simmons  v.Fairchild 149.  607 

Simmons  v.  Law 319 

Si  m  mon  V.  Sisson 516 

Simonson  V.  Blake 274 

Simpson  v.  fronch 701 

Simpson  V.  Hart 620 

Simp.son  v.  Hurnbeck.. 4.53 

Simi)sonv.  Loft 713,  73« 


TABLE   OF   CASES   CITED. 


XXXV 


PAGE. 

Simpson  v.  Lord  Howden 408 

Singer  v.  Trai.tmau 697,  ti'M 

Sipperley  v.  Troy  &  Boston  R.  R.  Co. . .  :ib"7 

504,  (iOil 

Skillett  V.  Fletcher 440 

Skillin  V.  Merrill 384 

Skiner  v.  Stuart 1-9 

Skinner  V.  Oettinger 128 

Skin  tier  V.  Tinkei- 403 

Skinner  V.  White 400 

Slackv.Brown 244,  701 

Slackv.Heath 461,  463 

Slant  V.  Steamboat  Ohio 865 

Slater  v.  Franks 438 

Slauson  V.  Englehart 288 

Slingerland  V.  Morse 703 

Slipper  V.  Stidstone 146 

Sloan  V.  Van  Wyck 694 

Slocum  V.  Barry 437 

Slocum  V.  Hooker 118,498 

Slocum  V.Wheeler 723,  734 

Sluyter  V.  Williams 309 

Sly  V.  Edgley 391 

Small  V.  Graves 341,  666 

Small  V.  Ludlow 168 

Small  V.  Sloan 70 

Small  V.Smith 698 

Smart  v.  Bement 591,  803 

Smartv.  Borat 497 

Smita  v.  Allen 373 

Smith  V.  Atlantic,  etc 498 

Smith  V.  Applegate 687,  688 

Smith  V.  Babcock 666 

Smith  V.  Barron 146 

Smith  V.  Brady 486,  487 

Smith  V.  Briggs 486 

Smith  V.  Brown 180,760,  768 

Smith  V.  Countryman.  240,337,  654 

Smith  V.  Crouse 463 

Smitn  V.Dixon 878 

Smith  V.  Devlin 693 

Smith  V.  Downing 360 

Smith  V.  Felton 437 

Smith  V.  Fletcher 903 

Smith  V.  Gntje 434 

Smith  V.  Gardner 413 

Smith  V.  Geortner 110 

Smith  V.  Great  Eastern  Railway 295 

Smith  V.  Greenin 546,  591 

Smith  V.  Hallock 33,136,  138,  143 

Smith  V.  Kay 337,  481 

Smith  V.  Knapp 253 

Smith  V.  Lasher 540 

Smith  V.  Leland 195 

Smith  V.  Lewis 483 

Smith  V.  Lippincott 204,  840 

Smith  V.  Lockwood 338,  747 

Smith  V.  London,  etc 386,  388 

Smith  V.  Marvin 467 

Smith  V.  Mawhood 173,  565 

Smith  v.Mayor 381,38:3 

Smith  V.  Mercer 191 

Smith  v.  Miller 191 

Smith  V.  Moore 418 

Smith  V.  Mulock 403 

Smith  V.  Oliphant 351 

Smith  v.Orser 141,  401 

Smith  V.  Reeves 565,  656 

Smith  V.  Roche 436 

Smith  v.  Snerman 71 

Smith  V.  Smeltzer 703 

Smith  V.  Smith  ...  3.13,  481,  604,  673,  702,  866 

Smith  V.  Stewart 466 

Smith  V.  Thaciierah 449 

Smith  V.  Tiffany 323 

Smith  V.  Traiton 268 

Smith  V.  Whilden 418 

Smith  V.  White 497 


PAGE. 

Snelling  v.  Howard 293 

Snow  V.  Fourth  National  Bank, 691,  770,  887 

Snow  v.  Howard    661 

Snow  V  Moore 883 

Snowv.  Judson  314,337,738 

Snyder  V.  Goodrich 316 

Snyder  v.  Sponable 394 

Snyder  V.  White S?"?,  517,  535,  833 

Societe  General  v.  Metropolitan  Bank,  673 

865 

Solis  V.  Manning 244 

Solomon  V.  Wass 34 

Solmsv.Lias 246,310 

Somes  V.  Directors,  etc 468 

Sortore  v.  Scott 872,  884,  897 

Soule  V.  Union  Bank 390 

South  V.  Tanner 620 

Southall  V.  Rigg 221 

Southcote  V.  Stanley 486 

South  worth  v.  Curtis 281,  745,  791 

Southworth  v.  Smith 703 

Southworth  v.  Van  Pelt 575 

Spalding  V.Spalding 143,  147,  823 

Spalding  V.  Hallenbeck 317 

Sparks  V.  Farmers' Bank 441 

Sparks  v.  Leavey 694 

Spear  v.  Hart  505,  555 

Spelman  V.  Weider 734,  777,  781 

Spencer  V.  Dearth 673 

Spencer  V.  McGowen 450 

Spencer  v.  Spencer 313,  481 

Spencer  v.  Tooker 819 

Spencer  v.  Wheelock 135 

Speckler  v.  Clancy 691 

Spier  V.  Robinson 137,  141 

Spies  V.  Gllmore 344 

Spittler  V.  James 698 

Spooner  V.  Baxter 393,  394 

Spooner  v.  Brooklyn,  etc 390 

Sprague  v.  Duel 335 

Sprague  v.  McKensie 857 

Sprigge  V.  Sprigge 481 

Springy.  Sandford 400 

Springer  V.  Dwyer 886 

Springfield,  etc.  v.  Allen 439 

Sprlngstead  V.  Lawson....  143,  193,  231,  473 

Sproot  V.  Porter 438 

Squier  v.  Hunt 523 

Squire  v.  Flynn 2.53 

Squire  v.  Hurder 435 

Squire  V.  Norris   293 

Squire  V.  Whitton  304,  999 

St.  Felix  V.  Rankin 400 

St.  Johns  V.  Croel 831 

St.  John  V.  Griffith 184,  195 

St.  John  V.  Northrop 2.'i0 

St.  Paul's  Church  V.  Ford  Ill 

Stack  V.  Bangs 883 

Stacy  V.  Graham 333 

Stafford  v.  Brown 593 

Stafford  v.  Gold 145 

Stafford  v.  Howlett 384 

Stafford  V.  Ingersol 4.54 

Stafford  V.  Mayor 784 

Stagg  V.  Alexander 663 

Stahlv.Stahl 441 

Stancliff  V.  Hard  wick 565 

Stanford  V.  Waver 633 

Stannard  v.  Eytinge 192,  340,  848 

Stannard  v.  Mattice  . .  ■ . .    63,  283,  749 

Stanton  v.  Leland 70 

Staples  V.  Anderson 633 

Stappv.BuU 139 

Starbird  V.  Barron 319 

Star  Steamship  Co.  V.  Mitchell 833 

Startup  V.  Curtazzi 331 

Startup  V.  McDonald 885 

State  V.  Peck 895 


Smith  V.  Wilson 340,  390    State  v.  Pepper 89,  60S.  898 

Smith  v.  Wright 304,  311    State  v.  Phcenix  Bark 3b8,  339 


XXXVl 


TABLE   OF   CASES   CITED. 


PAGE, 

State  V.  Woram 661 

Steamboat  Orleans  v.  Phoebus 201 

Stebbins  V.  ilowell 3*it! 

Stebbias  V.  Palmer '.1 

Steele  v.  Haduuck. 6fi4 

Steele  v.  Smith 295,  375 

Stellor  V.  Nellis 6«T 

Stephens  V.  DeOmto 4^" 

Stepiiens  V.  Hall 591,  803 

Stephenson  V.  Hart 307 

Stephenson  v.  Stephenson 58 

Sterling  V.  Dundou 685 

Stern  V.  Drinker 206 

Sterns  v.  Tappan   207 

Stevens  v.  Brooks 481 

Stevens  V.  Curtis 4.54: 

Stevens  v.  Hunt .  •  703 

Stevens  V.  Low 693 

Stevens  v.  Midland,  etc 371 

Stevenson  v.  Buxton 842 

Steward  v.  Young 429 

Stewart  V.  Beebe 22t> 

Stewart  v.  Douton 34G 

Stewart  v.  Cuyler 487 

Stewart  v.  Drake 685 

Stewart  v.  Foster 411 

Stewart  v.  Hutckinson 413 

Stewart  v.  Isidor 288 

Stewart  v.  Keteltas 486 

Stewart  v.  McKean 699 

Stewart  v.  Travis 201,  717,  718 

Stewartson  v.  Lathrop 676 

Stiokney  v.  Blair 787,  801,  803,  807,  849 

Stierneld  V.  Holden 457,843 

Stikeinau  v.  Dawson 351 

Stiles  v.  Conistock 573,  575,  597 

Stiles  v.  Granville  399 

Btiles  V.  Hooker 480 

Stillman  v.  Mitchell 304,  305 

Stillnian  v.  Squire 427 

Stimson  V.Hall  694 

Stimson  V.  New  York,  etc 385 

Stockbridge,  etc.,  v.  Hudson  R.K.K.  Co.,  889 

Stockbridge  Iron  Co.  v.  Mellen 150,  594 

Stockbridge  v.  Schoonmaker 702 

Stockley  v.  Hornidge 371 

Stockport,  etc.,  v.  Potter 480 

Stoddardt  v.  Cleveland 437 

Stoddard  v.  Dennison 412 

Stoddart  v.  Onondaga  Annual  Confer- 
ence  510,511,  540,  T-13 

Stoker  V.  Coggswell 407 

Stokes  V.  Brown .394,395 

Stokes  v.  Cox 677 

Stokoe  V.  Rdlison 310 

Stone  V.  Browning 675 

Stone  V.  De  Puga 249 

Stone  V.  Flack 874 

Stone  V.  Frost 898 

Stone  V.  Hooker 293 

Stoiif  V.  Sprague 702 

Sioppani  V.  Richards 109 

*  Storer  V.  Coe  ..       108 

Storrs  V.  City  of  TJtlca 387 

Story  V.  Conger 376,413 

Story  V.  Livingston ..    80 

Story  V.  New  York  &  H.  R.  R.  R.  Co  ...  319 

Story  V.  Fnrnian    141 

Story  V.  .Johnson 401 

Story  V.  W'insur 5W 

Mover  V.  Evcleshlmer 67 

StnifiK  V.  Newlin ^.(0 

Strattoii  V.  Davidson 7.J9 

Straus  V.  Young 876 

Street  V.  Holyoke 391 

Streety  v.  Wood 69(1 

Strikttr  V.  Lynch Zi~ 

Strong  V.  MUike 7<K) 

Strong  V.  Swift 2(;6 

Strong  V.  Strong    SJJ 


PAGE. 

Strong  V.  Wheaton 88,    89 

Stranks  v.  St.  Johns 474 

Stratton  V.  Pettit 405 

Strykerv.  Lynch U4,  400 

Stryker  V.  Mott  400 

Studdy  V.  Saunders 424 

Sturtevant  v.  Brewer 38 

Sullivan  V.  Frazee 496 

Sully  V.  Frean 698 

Sunderlin  v.  Bradstreet 696 

Supervisors  v.  Briggs 468 

Sulten  V.  Cronin 423 

Supervisors  of  Galway  v.  Stlmsoa 95 

Supervisors  V.  Morgan 204 

Susquehanna  Bank  v.  Supervisors 442 

Sutherland  v.  Rose 100,310,412,437,  637 

Suydam  v.  Holden 366 

Suydun  v.  Jenkins 70,  694 

Swan  V.  Tappan  367 

Swan  v.  Wilkinson 662 

Swain  v.  Heartt 351 

Swain  V.  Mizner 397 

Swartwout  v.  Burr 4;M 

Swatzel  v.  Arnold 288 

Sweety.  Colts 477 

Sweet  V.  Ingerson 143 

Sweet  V.  Tuttle 496 

Sweetman  v.  Prince 473 

Swift  V.  Applebone 365,  294 

Swift  V.  Davitt ,..  765 

Swift  V.  Dey 447 

Swiftv.Drake 754 

Suift  V.  Poughkeepsie 441 

Swift  v.  Vaughn 784 

Symm  v.  Frazer 297,  422 

Symonds  v.  Atkinson 313 

Symonds  v.  Barnes 666 

Taber  V.  Gardner 281,  666 

Taborv.  Bradley 478 

Tabor  V.  Robin.^on 451,  475,  704 

Tair  Vale  Railway  Co.  v.  Nixon 291 

Talbot  v.  Bank  of  Rochester 334 

Tallev  v.  The  Great,  etc 409 

Tallmadge  v.  East  River  Bank 317,  352 

Tallmadge  V.  Wallis 322 

Tallmanv.  Green 163,  2:28 

Tallman  v.  Turck 322 

Talmage  V.  Pell 339 

Tancred  v.  Allgood 417 

Tancred  v.  Christy 466 

Tate  v.  Williamson 336 

Tatterson  v.  Suffolk 675 

Taunton  v.  Royal  Ins.  Co 109 

Taussig  V.  Hart 855 

Taylor  v.  Baldwin 444 

Taylor  V.  Bates 323 

Taylor  v.  Bradley 223,  397 

Taylor  v.  Brewer 486 

Tavlor  V.  Church 696 

Taylor  V.  Corl)iere 173,  806 

Taylor  V.  Crane 230 

Taylor  v.  Crowland 676 

Taylor  v.  Jaques 670 

Taylor  v.  Jeniungs 564 

Taylor  v.  Luther 516 

Taylor  v.  Porter 418 

Taylorv.  Laird 483 

Taylor  v.  Ramsey 366 

Tavlor  V.  Richards 499,  605,  661 

Tayl< ) r  v.  Root 620 

Taylor  v.  Salmon 83 

Tavlor  v.  Taylor...   104 

Tell  V.  Beyer 745 

Temple  v.  Bacchus 703 

'J'emple  v.  -Murry 517,  525 

Tenant  y.  Golding 246 

Ti-rrct  V.  Crambie 901 

Terry  v.  Chandler 704 

Terry  V.  Dayton 664 


TABLE   OF   CASES   CITED. 


XXXVU 


PAGE. 

Terry  v.  Hntcliinson 4:^5 

x'erwi  I  lifter  V.  lieals 8)j5 

Terwilliger  v.  Wheeler 2'J3 

Thaciier  v.  Bancroft lO'J 

ThacLier  v.  Morris 430 

Thaeker  v.  Henderson 868,  889 

Thatcher  v.  Candee 94,  770 

Thatcher  v.  Enylaud 418 

Thayer  V.  Willett US 

Thayer  v.  Wright 460 

Thoinas  v.  Allen oOU 

Thomas  v.  Axvvorth 310 

Thomas  v.  lieebe 337 

Thomas  V.  Bennett 57,    93 

Thomas  v.  Craft 451,  474 

Thomas  v.  Fleury 487 

Thomas  V.  Harrop 600 

Tliomas  v.  Morgan 895 

Thomas  v.  Rhymney  388 

Thoinas  v.  Win(;hester 391 

Thompson  v.  Acer 527 

Thompson  v.  Burnett 564 

Thompson  v.  Dudley 100 

Thomi)son  v.  Erie  Ry.  Co 546,  648,  650 

Thompson  v.  Farago 858 

Thompson  v.  Greenwood 496 

Tliompson  V.  Hall 698 

Tliouipson  V.  Hooker  633 

Thompson  v.  Howe 97,193,  376 

I'hompson  V.  Otis 378 

Thompson  v.  Sickles 633,  680 

Thomiison  v.  Tioga  R.  R.  Co 'tiij'Z 

I'hompson  v.  Wood 485 

1'horm  V.  Germand 831 

Thorn  v..Moser 696 

Tliorn  V.  New  York  Central  Mills 538 

543,  547,  649 

Thorn  v.  Pitt 103 

Tnornton  v.  Simpson 394 

Thorp  V.  Keokuk 407 

Thorp  V.  Ross 406,  467,  493,  494 

Thorpe  v.  Thorpe 169 

Threlf all  v.  Borwick 354 

Thriiigs  V.  Central  Park,  etc  385 

a'tiroop  V.  Hatch 308,  436 

Thumb  V.  Walrath 605,  813 

Thurber  v.  Jenkins 699 

Thurman  V.  Stevens 206 

Thurston  v.  King 103 

Thurston  V.  Marsh 701 

Tibbets  v.  Ayer 695 

Tibbitts  V.  Blood  97 

Tibbitts  V.  Piercy 135 

Tibbies  V.  O'Connor 463 

Tideyv.  Mollett 405 

Tidinan  V.  Ainslie 678 

Tift  V.  Tift 394,  395,  375,  399 

Tillertsonv.  Race 664 

Tillotson  V.  Boyd 468 

Tillots  V.  Wolcott 330,  411 

Tilton  V.  Alcot 663 

Timan  V.  Leiand 366 

Tiuiothy  v.  Simpson 333 

Tinuey  v.  Stebbins 444 

Titsworth  v.  Hyde 663 

Tobias  V.  Howland 330 

Toland  v.  National,  etc 455,457,  841 

'l(jledo,  etc.,  v.  Pindar 393 

Tollett  V.  Sherst(jne 318 

Tomlinson  v.  liovve 427 

Tommisier  V.  Carsard 537 

Tomi)kins  V.  Acer 535 

Toin|)kinsv.  Dudley 676 

Tompkins  v.  Hyatt 435 

Tompkins  v.  White...  _ 140,  145 

'j'oms  V.  Wilson 410 

ToniicUe  V.  Hall I-HI 

To;)kerv.  Oakley ItT 

'l'i).>:ns  w.  Alexander 315 

Topiis  V.  Crane 39;j 


PAGE. 

Torrey  v.  Bank,  etc 468 

Torry  V.  lladlev 344 

Toscall  V.  Horslay 887 

Toulandou  v.  liiioheumeyer 080 

Toulmin  V.  Price 369 

Tower  v.  Utica,  etc 409 

Towle  V.  Smitn C>;4 

Town  V.  Neediiam 400 

Town  V.  Stetson 447 

Townend  v.  Toker •. . . .  430 

Towner  v.  Tooley 81,  110 

Townsend  v.  Corning 325 

Townseud  v.  1  {ubbard 293 

Townsend  v.  Piatt 565 

Townsend  V.  Townsend 140,  333,  336 

Townsend  v.  Walthen 396 

Townsend  V.  Wesson 864 

Tozerv.  Child 469 

Tracy  v.  Albany,  etc 703 

Tracy  v.  Humphrey 803 

Tra(!y  v.  New  York  Faucet  Co.,  309,  611,  6-35 

Tracy  v.  Stone 610 

Traders'  Bank  v.  Gardner..  58,  111,  169,  404 

Tradesman's  Bank  v.  Hyatt 540 

Trapliagen  v.  Traphagen 433 

Trask  v.  Payne 439 

Traver  v.  Eighth  Av.  R.  R.  Co..  158,  486,  499 

563,  661 

Travis  v.  Banger 563,  564,  .567 

Travis  V.  Jenkins 473 

Travis  v.  Tobias 63,  156 

Tread  well  v.  Bruder 563 

Tread  well  v.  Fassett 283 

Treadwell  v.  Joseph 261 

Treasurers  v.  Bates 403 

Tripp  v.  Itiley 443 

Troup  V.  Haight 618 

Troup  v.  Smith's  Ex'rs 681 

Troy  and  Rutland  R.  R.  Co.  v.  Howe. . .  799 

Truslow  v.  Putnam 367 

Trustees  v.  Co  wen 80 

Trustees  v.  Garvey 437 

Trustees  v.  Kellogg 110 

Trustees  v.  R(jbinson 437 

Trustees  v.  Stewart Ill,  415,  437 

Trustees,  etc.,  v.  Youmans 478 

Tubbs  v.  Caswell 733 

Tuolver  v.  Newman 451 

Tucker  v.  Rushton 199,  305 

Tucker  v.  Tucker 313,  481 

Tuckerman  V.  Brown 334,  684 

Tulk  V.  Moxhay 317 

Turley  V.  Bates 343 

Turner  V.  Bank  191,  663,  663,  688 

Turner  v.  Collins 335 

Turner  v.  Jones 393 

Turner  v.  Mason 490 

Turner  v.  Roby 308,  363 

Turner  v.  Simpson 717,  763 

Turner  v.  Smith 401 

Turner  v.  Taylor 291 

Turner  v.  Turner 876 

Turner  v.  Walker 419 

Tuttlev.  Smith 159,  161 

Tyler  v.  Ames 904 

Tyler  v.  Barrows 71 

Tyler  v.  New  Amsterdam,  etc 439 

Tyler  V.  Stevens 623 

Underhill  v.  Crawford 3.59 

Underwood  v.  Green 687 

Union,  etc.  v.  Sixth,  etc 377,  378 

Union  Bank  v.  Bassett 831 

ITnioii  Bank  v.  Bush 73,  133 

Union  Bank  v.  Gregory .530 

Union  Bank  v.  Mott 136,  831 

Union  Mut.  Ins.  Co.  v.  Osgood 336 

Union  Rubber  Co.  v.  Tomlinson 846 

United  Stat<.'S  v.  Arclior 119,  441 

United  States  v.  Bartlett 383 


XXXV  ill 


TABLE   OF   OASES   CITED. 


PAGE. 

United  States  V.  Cushman 119,  Ul 

United  States  V.  Hnnter 271 

United  States  v.  Inhabitants,  etc..  382,  460 

United  States  V.  LefQer   698 

United  States  v.  Wilder 663 

University  V.  McNeil l^S 

Upjohn  V. Upjohn  564 

UMca  Ins.  Co.  V.  Lvnch 540,545 

Utica  Ins.  Co.  v.  Scott 804 

Utter  V.  Stewart 343 


Vail  V.  Knapp 

Valentine  V.  Llovd    137, 

Valentine  v.  Wetherill 

Valton  V.  Xat.,  etc 

Van  Allen  v.  Jones 168,  169, 

Van  Alstyne  V.  Freday 311,  648, 

Van  Alstyne  v.  Nat.  Com.  Bank 

Van  I!ec-k  V.  Villaije  of  Rondout 

Van  Beiitliiiysen  v.  Stevens 

Van  Hiiskirk  v.  Irving 

Van  Huskirk  v.  Roberts 

Van  liuskirk  V.  Stow 405, 

Van  Camp  v.  Miller 

Vanderbilt  v.  The  Accessory  Transit 

Co 799,  837, 

Vanderkenip  v.  Shelton 

Vanderpoel  v.  Tarbox 

Vanderw'^rker  v.  Vanderwerker  ...  89, 

Vandovoort  v.  Gould 140, 

Vandusun  v.  Hay  ward 

Vanduseii  v.  Youns 417,  450,  466, 

Van  Epps  V.  Harrison  

Van  Epps  v.  Van  Dusen 

Van  Etta  v.  Evenson 

Van  Ktten  v.  Hurst 

Van  Gierson  v.  Van  Gierson 

Van  Horn  v.  Emerson 

Van  Home  v.  Montgomery 

VanHorne  V.Willis 381, 

Van  liBU  ven  v.  Ly ke 394, 

Van  Name  v.  Van  Name 140, 

Van  Naiuee  v.  People 

Van  Ness  v.  Bush  

Van  Nest  v.  Talmage 

Van  Orinan  v.  Phelps 444, 

Van  Peel  V.  Hoyes 

Van  I Jeiiss  -lear  v.  Aiken — 

Van  Keiisselear  v.  Uonesteel 

Van  Rensselaer  v.  Brice 553,  584, 

Van  Rensselaer's  Ex'rs  v.  Gallup 

Van  Rensselaer  v.  Kidd 

Van  Rensselaer  v.  Kirkpatrick 

Van  Rensselaer  v.  Morris 

Van  Rensselaer  v.  Owen  66, 

Van  Rensselaer  v.  Smith 

Van  Schaaick  v.  H.  R.  R.  R 

Van  Schaai.k  v.  Third  Av.  R.  R.  Co... 

Van  Sly<-k  v.  Snel! 

Van  Steetibtir^rh  v.  Tobias 

Van  Tassel  v.  Van  Tassell 

Van  Valkenbursrh  v.  Stupplebein 

Van  Valkenburgh  v.  Van  bchaack 

Van  Vlieden  v.  Wells 

Van  vricklin  v.  Paulson. 

Van  Winkle  v.  Adams'  Ex.  Co 

Van  Wyck  v.  Alllcer 

Van  Wyck  v.  A.spinwall 

Vassear  v.  Livini;ston 

Vauk'hn  v.  Hancock    

Vaupell  v.  Woodward 

Veddor  V.  Vecld   r 

Vernieule  v.  Heck 140, 

Vermllyea  V.  Odoll 

Vernede  v.  Weber 

Vestry  v.  Ramsey 

Vhill  V.  Mott 

Vlany  v.  Kcrran 

Vlbbard  v.  Rodrick 629, 

Vlele  V.  Go38  


PAGE. 

Vincent  V.  Cornell 457 

Vincent  v.  Leland . .  435,  473 

Vintcn  v.  King 353,  693 

Vitturn  v.  Gihnan 103 

Vivian  v.  Mersey  Docks 679 

Vogel  v.  Babcock 75,  31,' 

Voorhies  v.  Voorhies 564 

Voorhis  v.  Baxter  et  al '31 

Voorhis  v.  Childs  ...   34 

Vosburgh  v.  Moak 390 

Vrooms  v.  Titmas 559 

Wadev.Chaffee 664 

Wadev.  Coope 438,698 

Wade  V.  Rusher 109,  140 

Wadleigh  V.  Veazie 498 

Wadleyv.  Davis 861 

Wagener  v.  Bell 346 

Wager  v.  Troy,  etc 409,  443 

Waggoner  v.  Brown 381 

Wagoner  v.Jermain...  307,365,  480 

Wagstafif  V.  Bryan 389 

Wake  V.  Harrass 293 

Wakefield  Bank  v.  Truesdell 673,  699 

Wa'ieley  V.  Davidson 479 

Wakeman  v.  Gowdy 390 

Wakeman  V.  Grover 81 

Wakeman  v.  Ilazleton 299 

Waite  v.  Leggett 378 

Walburn  v.  Ingilby 109 

Walcott  v.  Ranolds 168 

Waldenv.  Crafts 323 

Waldhara  v.  Bender 6.58 

Waldorph  V.  Bortle 98,    99 

Waldron  V.  Ritchings 372 

Waldron  v.  Williard .  ..69,    70 

Walker  V.  Cronin .  877 

Walker  V.  Deveraux 109 

Walker  V.Gilbert 364,365,  668 

Walker  V.  Granite  Bank 268,539,  831 

Walker  V.  Olding 453 

Walker  v.  Osgood 69,  694 

Walker  v.  Swayzee 695 

Walkerv.  Walker 100,  325 

Wall  V.  Lee W. 

Wallace  v.  Eaton 65,  78,  74" 

Wallace  V.  Fitzsimmons 146 

Wallace  V.  Lent 338,  365 

Wallace  v.  Moore 351 

Wallace  v.  Rusen 609 

Waller  v.  Raskan 264 

Wallsv.  Bailey 860 

AValmersley  v.  Child 369 

Walradt  v.  May nard 323 

Walrathv.  Handy 313,  481 

Walrath  V.  Thompson 343 

Wallrod  v.  Ball 389 

Walrod  v.  Bennett 534,  570,  710 

Walsh  V.  Durkin 498 

Walsh  V.  Ostrander 620 

Walsh  V.  Rutgers'  Fire  Ins.  Co 3;J5 

Waller  V.  Bennett 457,  843 

Walter V.  Lockwood    326 

Waltermere  v.  Westover 206,  7.>t 

Walton  V.Walton 330 

Walworth  V.  Holt 83,  lO*, 

Warburton  v.  Great  Western,  etc 375 

Ward  V.  Davis 794,  79o 

Ward  v.  Dewey 64,  310,  4<W,  4'' 3 

Ward  V.  Gove 633,  6TS 

Ward  V.  Kelsey 695 

Ward  V.  People 4."'>4 

Ward  V.  Stringham '. l-"'5 

Ward  V.  Syme 461,565 

Ward  V.  Van  Bokkelen 115,  116 

Ward  V.  Waterhouse j30,  643 

Warden  V.  Eden 36C 

Waring  V.  Smyth 474 

Warner  V.  Blakeman Sf>(! 

Warner  V.  Heiden 348,  869 


TABLE  OF   CASES   CITED. 


XXXIX 


PAGE. 

Warner  v.  Kenny 793,  7W 

Warner  v.  Nelligar 3110 

Warner  V.  Western  Trans.  Co 300 

Warren  v.  Eddy 100,  101 

Warren  v.  Si'ott (i-J^ 

Warren  v.  Warren 367,  HJ^i 

Warren  v.  Wendell 233 

Warring  v.  vVarring ■  •  •  •  400 

Warth  V.  Radde HO,  143 

Warwick  v.  Mayor HI 

■>Vashburn  v.  Franklin 30b,  349 

•Vashburn  v.  Herrick S19 

Washburn  v.  Hubbard HUl 

Waterbury  V.  Sinclair 337 

Waterbury  v.  Westervelt 437 

Waterman  v.  Jameson 6S4 

Waters  v.  Wiiittemore 161 

Waturville  Manuf .  Co.  v.  Bryan 3:it) 

Watkin  v.  Hall 577 

Watkins  v.  Eames 437 

Watkiiis  V.  Kush 5t>a 

Watling  V.  Oastler 37 

Watson  V.  Bailey <>0'-> 

Watson  V.  Hazard —  139 

Watson  V.  Huzzan 591,  735,  755,  761 

Watson  V.  McClay 475 

Watson  V.  McLaren 168 

Watson  V.  Shuttleworth 699 

^Vatson  V.  Thibou 388,  389,  565,  831 

Vv^c.tt  V.  Watt 3t)8 

Watts  V.  Kelson 478 

Watts  V.  Kinney 136,  479 

Wattsv.Ward  890 

Wayne  V.  Devinney 437 

Wayne,  etc.,  V.  Smith 437,  438 

Wayland  v.  Aymer 546 

Wayland  v.  Lysen 304,  648 

Wayne  V.  Smith 438 

Weatherly  v.  Wood 475,  476 

Weaver  V.  Bardin 854,  883,  887 

Weaver  V.  Ward 387 

Weaver  V.  Wisner 425 

Webb  V.  Beavau 900 

Webb  V.  Pond 303 

Webb  V.  Rome,  etc 879 

Webb  V.'  Scott 900 

Webber  v.  Underbill 69 

Webster  V.  Dillon 353,871 

Webster  V.  French 710 

Web.-^ter  v.  Nosser 363 

Weed  V.  Bibbins 310,438 

Weedv.  Clark 1^5 

Weed  v.  Panama  R.  R.  Co 375 

Weels  V.  Webster 816 

Wehlev.  Butler 564 

AVehle  V.  Rowland 564 

Wehl  V.  Vanderwulbeke 439 

Weigerv.  Held 497 

Weil  V.  Schiiltz 303 

Wleimer  V.  President,  etc 3««j 

Welch  V.  Ourand 391 

Welch  V.  Hazelton 695 

Weldv.  Baxter GIB 

Weld  V.  Oliver 444 

Weldon  V.  Harlem,  etc 890 

Welles  V.  Webster 226 

Wells  V.  Cruger 3S9 

Wells  V.  Jewett 143 

Welli ng  V.  J udge 390 

Wellistonv.  Welliston 431 

Wells  V.  Jewett HI 

Wells  V.  Kelsey 473 

Wells  V.  Padgett 436 

Wells  V.  Pierce 413 

Welton  V.  Divine 664 

Wendell  v.  City  of  Brooklyn 493 

Wendell  v.  Mayor 387 

Wendell  v.  Van  Rensselaer '-O*) 

Wentworth  v.  Poor 479 

Werner  v.  Waters 671 


PAGE. 

Wesoott  V.  Keeler 703 

Wesson  v.  Jiidd 541,  543 

West  v.  American  Ex.  Bank 530,  !>ii 

West  V.  Brewster 161 

West  v.  Randall  et  al 79 

West  V.  Stanley 288 

Westcott  V.  Fargo 873,  884 

Westcott  V.  Thompson 319 

Western  Bank  V.  Oddie BS-l 

Western  Ins.  Co.  v.  Eagle,  etc.,  Ins.  Co.,  375 

Western  v.  McDermott 317,  353 

Western  Reserve  Bank  v.  Potter. .  100,  413 

Western  Trans.  Co.  v.  Marshall 306 

Westfall  v.  Preston 899 

Westfall  V.  Peacock 868 

Westlake  v.  Degraw 365 

Weimore  v.  Atlantic,  etc 477 

Wetraore  v.  Scovill 407 

Wetterwulgh  V.  Knickerbocker,  etc. ..  484 

Weyburn  v.  White 71 

Whaley  v.  Peak 399 

Wheeler  v.  Alien 310,  561 

Wheeler  v    Billings 508 

Wheeler  V.  Brant 394,  295 

Wheeler  V.  Dakin 103 

Wheeler  V.  Dixon 601 

Wheeler  v.  Garcia 333 

Wheeler  V.  Gilsey 353 

Wheeler  v.  Ruckman 673,  673 

Wheeler  v.  Wheeler 137 

Whelan  v.  Whelan 80,  106 

Wheeloek  v.  Wheelright 303 

Whincup  V.  Hughes  490 

Whitaker  v.  Eighth  Av.  E.  R.  Co 831 

Whitbeck  v.  Edgar 114 

White  V.  Atkins 486 

White  V.  Dodds 564 

White  V.  Carmarthen 109 

White  V.  Carroll 696 

White  V.  Curamings 600,  643,  643 

White  V.  Cotesworth 564 

White  V.  Crisp  387 

White  V.  Dodds 309 

White  V.  Graves 867 

White  V.  Hudson  River  Ins.  Co 76o 

White  V.Jones 341 

White  V.Joy 717 

White  V.  Kidd 240,  591 

White  V.  L<nv ■.  ^ 

White  V.  M adison 133,  393,  330 

White  V.  Merritt 337,  738 

White  V.  Moseley 479 

White  V.  Nellis 425 

White  V.  Osborn 444 

White  V.  Schuyler 430 

White  V.  Seaver •■•    „54 

White  V.Smith 5^' 2;i 

Whitev.Story 372 

White  V.Whitman •■••  498 

White  V.  Williams  .  ^^^  tJn 

White  V.  Winnissimmet 389 

Whitehouse  V.  Moore 319 

Whitfield  v.  South  Eastern,  etc 371 

Whiting  V.  Mayor 770 

Whitlock  V.  Lysaght 366 

Whitmarsh  v.  Angle ^ 

Whitmarsh  v.  Campbell oSl 

Whitmore  v.  Greene ■ .  •  •  565 

Whitney  v.  Hitchcock 3^3,  398 

Whitney  V.  McKinney H5 

Whitney  v.  Taylor cV-ili  ^^ 

Whitney  v.  Whitney 61,  343,  564 

Whittier  V.  Bates ■•■•    50 

Whrede  v.  Bennett •  •  5i6,  5i9 

vVhvte  V.  O'Brien •  •  42b 

Wies  V.  Fanning 371,  581,  599,  603,  673 

Wigand  V.  Siche! 141.  191 

Wiggstt  V.  Fox •  3(5 

Wiggins  V.  Gana 640,  810 

Wiggi  I'S  V.  McCleary 863 


xl 


TABLE   OF   CASES   CITED. 


PAGE. 

Wlffht  V.  "Wood  310 

Wilher  V.  Sisson ■t^l 

Wilbur  V.  Hubbard Ill 

Wilbur  V.  Ostrom 200 

VVilcocks  V.  Nichols 1^ 

Wilcox  V.  Lee tiT2 

V.ilcox  V.  Smith 300,  3:i« 

Will-ox  V.  Wilcox 308,444 

Wild  V.  Columbia  County  Supervisors,  Bt5;i 

Wilde  V.  nibson S^ 

Wilde  V.  Hexter 829,841 

Wilder  V.  Adams 564 

Wiley  V.  Slater 295 

Wilkes  V.  Harper 439,  668 

Wiikie  V.  Chadwick 483 

Wilkinsv.  Earle .  ai4 

Wilkinson  V.  Fowkes 108 

Wilkinson  v.  Henderson 123 

Wilkinson  V.  Martin 305 

Wilks.>n  V.  Fairrie 386 

Willett  V.  Stewart 159 

Williams  v.  Allen 620 

Williams  v.  Ayrault 403 

Williamsv.  Birch 833 

Williamsv.  Brown 75 

Williams  V.  Carwardine 418 

AVilliams  v.  Edwards 486 

Williamsv.  Finch 71,393,  488 

Williams  V.  Fowler »48 

Williamsv.  Hancer 168 

Williams  v.  Hayes 25,  45,  240,^43,  245 

Williams  v.  Hernon 388,  5t)5 

Williams  v.  Holdredge 439 

Williamsv.  Hutchinson 398,399,  489 

Williams  v.  Keech 101 

Williams  v.  Johnson 445,  446,  447 

Williams  v.  Jones 302,  374 

Williams  v.  Marshall 698 

Williams  v.  New  York  Central  R.  R. 

Co 409,  443 

Williams  v.  Kichmond 803 

Williams  V.  Tilt 333 

W'illlams  v.  Ujitoii 713,736 

Williams  v.  Vanderbilt 330 

Williamsv.  Wilkinson 154,  830 

Williams  V.  Williams 3.53 

Williamsv.  Wood 337,  738 

Williamson  v.  .'Mlison 331 

Wiliamson  v.  Champlin 232 

Williamson  V.  Moore 98 

WlllianI  V.  Fiisthara 371 

Williard  v.  Merritt ; 425 

WillliiKsv.  Wheeler 316,  363 

Willis  v.  Chipp 560,  635,  656,659,  728 

Willis  v.  Forest 796 

Willis  V.  Taggart 550,  551,  .584,  605,  60(5 

638,  "ftt 

WlUisv.  Underbill sm 

Willis  V.  Warren  a33 

Williston  V.  Williston 432,  -m 

Wills  V.  Wills ,399 

Wilson  V.  Brereton 493 

Wilson  V.  Edwards 897 

Wilson  V.  Hart 317 

Wilson  V.  McLaughlin 900 

Wilson  V.  Mayor 443,  687,  706 

Wilson  V.  Stolly  70 

Wilson  V.  Tuminon 8W 

Wilson  V.  Wilson ]iX) 

Wlnchell  V.  Bowman 208,  681,  754 

Wlnchell  V.  Hicks 206 

Wlnit  V.  Dii;,'an 863 

Wlnno  V.  Sickles 546,  547,  647,  749 

Wlnshlp  V.  Pitts 475 

WInslowv.  Ferguson 048 

Wlnsor  V.  Lombard 422,  471 

Wliistcd  Bank  v.  Webb I'll 

Wltitcrbottom  V.  Lord  Derby 345 

Wlntringlmm  V.  Lefoy 4.5:^ 

Wise  V.  Chase 192 


I  PAGE. 

I  Wlsenbergv.  City  of  Appleton 233 

I  Wiswall  V.  McGown  394 

Witbeck  V.  Holland 331 

VVitbeck  V.  Witbeck im 

Witham  V.  Witham 443 

Witherhead  v.  Allen 97,  171 

Witt  V.  Mayor,  etc 415 

Wodell  V.  Coggeshall 398 

Wolcott  V.  Halcomb 4<j3 

Wolcott  V.  McFarland ...  8:30 

Wolfe  V.  Frost   317,  353 

Wolfe  V.  Goulard    445 

Wolfe  V.  Howes 490 

Wolfe  V.  Supervisors SOC 

Wood  V.Anthony 200,  609,  809 

Wood  V.  Brown 373,  561 

Wood  V.  Clute 140 

Wood  V.  Derrickson 463,  463 

Wood  V.  Henry 192,  253,  351 

Wood  V.  Jackson 455,  458,  504,  56.5 

Wood  V.  Lambert 794 

Wood  V.  Orser 453 

Wood  V.  Perry 701 

Wood  V.  Stanril 536,  537,  801 

Wood  V.  Whitney 520 

Wood  V.Wood   787,807,849 

Woodbury  v.  Sackrider 180 

Wooden  v.  Strew 244.  249,  594 

Wooden  v.  Waffle  ....  23,  25,  26,  39,  43,    49 

248,  590,  784 

Woodier  v.  Great  Western  Trans.  Co. .  306 

Woodlev  V.  Coventry 343 

Woodruff  V.Cook 238,566,  798 

Woodruff  V.  Dickie 839,830 

Woodruff  V.  Moore 874 

Woods  V.  Creaghle 411 

Woods  V.  Morrell 530,541,  .593 

Wood  ward  v.  Aborn 480 

Woodward  v.  Stearns 676 

Woodworth  v.  Bellows,  591,  610,  a35,  799,  803 

Wood  worth  v.  Bennett  .3.50 

Woolen  V.  Wright 453 

Woolery  V.  Woolery 664 

Woolever  V.  Knapp 444 

Wooley  V.  Clark 671 

Wool.sey  v.  Judd 314.368,  407 

Woolsey  v.  Trustees 829 

Woosterv.  Chamberlain 88,  863 

Worcester,  etc.,  V.  Bigelow 4.37 

Worth  V.  Edmonds 490 

Worth  V.  Gilling 395 

Worthington  v.  New  York  Central  It. 

R.Co 877 

Wright  V.  Austin 699 

Wright  V.Bell 4:W 

Wright  V.  Castle 300 

Wright  V.  Delafleld    228,561,  787 

Weight  V.  Evans 352 

W^ right  V.  Holbrook    1.33 

Wright  V.  Leonard ^ 3r3 

Wright  V.  Moore 465 

Wright  V.  Morley 433 

Wright  V.  Paige 428,  439 

Wright  V.  Kittcrman 497 

W'lightv.  Saunders 346,384 

M' right  v.  Storraa 835,  836 

Wright  v.  l?Rrks 697 

Wright  V.  Whiting 303 

AVrightv.  Wright 400 

Wyatt  V.  Harrison 449 

Wyckoff  V.  Movers 486,  487 

Wygant  V.  Slchol 496 

Wvtrant V.Smith 331,411 

Wylde  V.  Hiirris 8.54 

Wyman  V.  Farnsworth 466,467 

Wy man  v.  Fox 335 

Xemla  Branch  Bank  v.  Lee 149 

Yale\.  Dederer 371 


TABLE   OF   CASES   CITED. 


xli 


PAGE. 

Yardly  v.  Ingram 668 

Y'arroway  v.  Hand 88 

Yates  V.  Passett 69,  460 

Yates  V.  Milwaukee 396 

Yates  V.  St.  John 864 

Yellowby  V.  Gower 364 

Zerby  V.  Kirkpatrick 75 

Yertore  v.  Wiswall 103 

Yorattv,  Winyard 353 

Y'ork  Co.  V.  Brookec 896 

Yorksv.Peck 121 

Young  V.  Billiter 461 

Youngv.CaUett 530 


PAOE. 

Youngv.  Davis 311 

Young  V.  Grote 334 

Youngv.  Hunter 424 

Youngv.  Kent 539 

Youngv.  Pickens 694 

Youngs  v.  Ransom 414 

Youngs  V.  Stahlen 688 

Zabriskie  V.  Smith 68,    70 

Zeighlerv.  Beasley 698 

Zinn  V.  New  Jersey,  etc 856 

Zerko wski  v.  Zerkowski 142,  335 


P9]  *  INTRODUCTION. 


In  presenting  for  the  favorable  consideration  of  the  profession  a 
treatise  on  the  system  of  pleading  in  civil  actions  as  modified  by 
the  Code  of  Procedure,  a  brief  explanation  of  the  object  and  design 
of  the  work  will  not  be  inappropriate. 

The  idea  of  undertaking  a  task  of  the  kind,  presented  itself  to 
the  author  as  the  suggestion,  first,  of  his  own  immediate  wants  in 
the  daily  practice  of  the  profession ;  and,  second,  as  a  suggestion 
arising  from  the  wants  of  that  large  class  who  are  engaged  in  a 
course  of  elementary  study,  preparatory  to  entering  upon  the  prac- 
tice of  law.  From  his  own  experience,  the  author  was  entirely 
satisfied  of  the  utility  and  general  convenience  to  the  practicing 
lawyer  of  a  treatise  exclusively  confined  to  the  subject  of  pleading, 
and  presenting  at  one  view  the  general  features  of  pleading,  under 
the  former  practice  both  at  law  and  in  equity,  with  the  modifica- 
tions and  changes  effected  by  the  Code,  the  principles  governing  the 
new  system,  the  rules  now  applicable  thereto,  and  a  reference  to, 
and  analysis  of,  the  decision  made  by  the  courts  in  illustra- 
[*10]  tion  and  explanation  of  those  *  rules  and  principles.  Such 
a  work,  if  properly  executed,  the  author  was  satisfied,  from 
his  own  wants  and  experience,  might  be  of  much  utility,  as  a  book 
of  reference  to  the  profession  generally. 

Still  more  so  to  the  law  student  might  such  an  elementary  work 
be  deemed  of  use  and  service  as  an  introductory  study  to  the  science 
of  pleading,  and  as  a  guide  to  indicate  the  extent  and  nature  of  the 
changes  made  in  that  science  by  the  Code.  There  is  scarcely  a  more 
perplexing  subject  to  one  entering  upon  the  study  of  the  law,  than 
that  which  embraces  the  system  and  science  of  pleading  as  it  now 
exists,  nor  one  which  requires  more  accurate  and  careful  study  to 
master.  Under  the  old  system,  as  it  heretofore  prevailed  in  this 
State,  mingling  as  it  did  much  of  a  useless  form  and  frivolous  tech- 
nicality, with  much  of  that  substantial  logic  and  sound  reason 
which  must  always  characterize  any  system  so  long  as  legal  distinc- 
tions are  preserved,  the  study,  though  difficult,  was  accurate  and 
systematic,  and  the  land-marks  of  the  science  clearly  and  distinctly 
defined.  The  authorities  had  been  so  carefully  collated,  and  so 
thorouglily  digested,  both  in  the  digests  themselves  and  in  element- 
ary works  on  pleading,  that  if  patience  and  industry  only  held  out, 
one  was  certain  in  time  to  grasp  the  entire  subject.  There  could  be 
no  mistake  in  the  ivay  of  acquiring  this  knowledge.  The 
'*11]  ablest  writers  on  law  had  *treated  of,  and,  perhaps,  exhaust- 
ed the  subject.  The  student  could  consult  among  others, 
on  pleading  at  law,  such  writers  as  Chitty,  Gould  and  Stephen.  In 
Equity,  Lube,  Cooper,  Mitford  and  Story.     Nor  were  precedentSj 


2  IXTKODUCTIOiT. 

in  every  conceivable  variety  and  form,  wanted  to  illustrate  the  sub- 
ject, and  assist  liim  not  only  in  its  acquisition,  but  in  its  practical 
application. 

All  this  is  now  changed.  At  the  very  outset  one  is  embarrassed 
in  selecting  the  proper  course  to  pursue,  or  the  immediate  study  to 
enter  upon,  in  acquiring  a  practical  knowledge  of  the  science  of 
pleading  under  the  Code.  The  very  first  provision  that  meets  us 
at  the  threshold  is,  the  provision  of  the  Code;  "all  the  forms  of 
pleading  heretofore  existing  are  aholished  ;  and  hereafter  tlie  forms 
of  pleading  and  the  rides  by  which  the  sufficiency  of  the  pleadings  is 
to  be  determined  shall  be  those  which  are  prescribed  in  this  act." 
Code,  §  140. 

Under  this  provision,  it  would  seem  as  idle  to  place  in  the  hands 
of  the  student,  a  volume  of  Chitty,  or  Stephen,  of  Cooper,  or  Story, 
with  a  view  of  his  obtaining  from  them  alone  a  knowledge  of 
pleading  at  law  and  in  equity,  as  it  would  be  to  place  in  his  hands 
an  elementary  treatise  on  Uses  and  Trusts,  with  a  view  of  his  be- 
coming master  of  that  branch  of  the  law  as  now  codified  by  the 

Revised  Statutes. 
[*12]  *Nor  does  the  Code  itself  furnish  the  desideratum.  It; 
abolishes  but  it  does  not  reconstruct ;  it  tears  down  an  old 
system,  but  it  does  not  build  up  a  new  and  complete  one  in  its 
place.  It  lays  the  foundation,  it  is  true,  simple,  broad  and  strong, 
but  it  leaves  the  edifice  to  be  erected ;  it  sketches,  boldly  and  dis- 
tinctly, the  outlines,  but  does  not  fill  out  and  complete  the  picture. 
It  is  not  true  then,  as  one  on  a  cursory  glance  might  be  led  to 
suppose,  that  the  main  rules  of  pleading,  founded  as  they  arc  in 
sound  logic  and  solid  reason,  are  utterly  abolished,  though  the 
forms  may  be ;  nor  that  the  study  of  the  elementary  writers  above 
mentioned,  and  of  others  Avho  have  trearted  upon  this  subject,  and 
the  authorities  which  establish,  and  the  decisions  which  illustrate 
the  principles  of  pleading  under  the  old  system,  are  to  be  wholly 
discarded  in  acquiring  a  thorough  knowledge  of  the  new. 

It  is  undoubtedly  true,  that  every  thing  technical  and  formal  has 
been  swept  away,  and  that  many  important  changes  in  other 
respects  have  been  made  by  the  Code;  but  much  of  what  was  sub- 
etantial  and  solid  still  remains;  and  it  is  also  true,  that  a  knowl- 
edge of  the  fundamental  principles  on  which  the  former  systems, 
both  at  law  and  in  equity,  were  based,  is  still  essential  to  a  thorough 
and  practical  knowledge  of  the  subject.  The  main  difficulty 
[*13]  to  *  the  hnvyer  in  his  practice  is  in  the  adaptation  of  these 
principles  to  the  new  system.  The  main  difficulty  to  the 
student  is  in  determining  for  liimself  the  proper  course  of  study 
and  investigation  —  the  starting  point  of  inquiry  —  arising  from 
his  ignorance  or  doubts  of  the  nature  and  extent  of  the  changes 
introduced  by  the  Code,  and  how  much  of  the  old  and  well-estao- 
lished  theory  is  still  applicable  to  the  new  practice. 

It  is  the  object  and  design  of  the  present  work,  in  some  humble 
degree,  to  supply,  partially  at  least,  this  Avant  of  the  profession. 
The  following  pages,  it  is  hoped,  will  prove  cf  service  and  utility 


INTRODUCTIOlSr.  3 

not  only  to  the  student,  as  an  elementary  book,  in  furnishing  to 
him  facilities  for,  and  assisting  him  in,  the  right  prosecution  of  his 
studies  in  this  branch  of  the  law,  but  to  members  of  the  profession 
generally,  as  a  book  of  easy  reference  to  establish  precedents  and 
recognized  principles  of  pleading,  both  under  the  former  practice 
and  under  the  Code. 

The  importance  of  the  subject  is  such,  certainly,  as  to  justify  its 
consideration  in  the  form  proposed.  The  Commissioners  of  the 
Code  say,  they  consider  the  change  in  pleading  to  be  the  key-note 
of  the  Tv^forms  recommended  by  them,  without  which  they  would 
despair  of  efiFecting  any  very  useful  or  practical  reforms.    We  may 

regard  this,  therefore,  as  the  most  important,  as  it  is  the 
[*14]     most  radical  and  *  extensive  of  the  changes  made ;  and  it 

has,  for  this  reason,  been  deemed  proper  to  treat  it  as  an 
entire  subject,  separate  in  itself,  and  distinct  from  the  subject  of 
practice  under  the  Code.  Nor  is  it  pretended  that  in  the  following 
pages  the  subject  has  been  exhausted,  or  the  entire  ground  fully 
explored.  To  do  this  would  lead  us  far  beyond  the  limits  marked 
out.  A  full  and  comprehensive  view  of  the  whole  subject  would 
require  the  discussion  of  principles  drawn  from  almost  every  branch 
of  the  law.  In  order  to  frame  a  pleading  correctly  under  the  new 
system,  not  only  the  rules  of  pleading,  properly  speaking,  but  the 
legal  principles  involved  in  the  action,  and  upon  which  the  relief 
depends,  must  be  thoroughly  understood.  The  forms  and  prece- 
dents, to  which,  like  the  bed  of  Procrustes,  under  the  old  system, 
every  cause  of  action  was  made  readily  to  conform,  are  now  aban- 
doned. The  pleader  must  state  his  fads ;  and  the  facts  must  be 
such,  and  such  only,  as  constitute  a  single  good  cause  of  action. 
The  question  that  meets  him  on  the  threshold  is,  what  facts  consti- 
tute a  good  cause  of  action  ?  and  without  the  aid  of  any  form  or 
precedent  to  guide  him,  this  question  must  be  satisfactorily 
answered  before  he  can  safely  take  the  first  step  in  pleading.  It  is 
evident,  therefore,  that  the  science  of  pleading  comprises  something 
more  than  a  mere  system  of  rules  respecting  the  mode  and  manner 

of  making  allegation  in  a  cause. 
[*lo]         *  Most  members  of  the  profession  will  no  doubt  agree  that 

it  requires  a  better  lawyer  to  frame  the  pleadings  correctly 
under  the  Code,  than  under  the  old  system. 

Take  one  of  the  most  simple  and  familiar  cases  —  that  of  an  action 
of  trover  at  common  law.  Almost  every  variety  of  case  in  trover 
might  be  properly  adapted  to  the  old  form,  namely, —  that  the  plain- 
tiff A,  was  possessed,  as  of  his  own  property,  of  a  certain  chattel 
which  he  casually  lost,  and  l^hich  afterward  came  into  B's  hands 
by  finding.  But,  the  said  B,  although  often  requested,  has  not 
returned  the  same,  but  has  converted  it  to  his  own  use,  etc.  No 
request  was,  perhaps,  ever  made,  and  no  loss  or  finding  was  neces- 
sary to  be  proved,  and  yet  the  pleading  was  theoretically  good ;  and 
the  plaintiff  was  allowed  to  show  any  state  of  facts  to  prove  that 
the  defendant  had  converted,  or  sold,  or  destroyed,  or  was  exercis- 
ing unlawful  dominion  over  the  property.     Under  the  new  pra?tice, 


«  INTEODUCTIO^r. 

the  facts  alone  must  be  stated.  A  demand  is  not  necessary  to 
be  averred,  except  when  necessary  also  to  be  proved,  or  rather  when 
the  facts  in  the  complaint  show  that  such  demand  must  be  proved 
to  sustain  the  action.  In  what  cases,  therefore,  it  may  be  asked,  is 
a  demand  necessary  to  be  alleged  in  an  action  which  would  have 
been  formerly  trover,  or  in  an  action  to  recover  personal  property  ? 
This  question,  often  a  nice  and  difficult  question  of  law,  it 
[*16]  Avill  be  seen,  must  be  first  *  satisfactorily  solved  before  the 
pleading  can  be  correctly  drawn ;  for  no  general  form  of 
pleading  can  meet  every  variety  of  case,  particularly  where  it  may 
be  desirable  to  verify  it  by  the  oath  of  the  party. 

A  full  consideration,  therefore,  of  the  subject  of  the  science  of 
pleading  might  be  said  to  embrace  the  discussion  of  the  principles 
of  law  on  which  the  action  is  grounded,  and  Avhich  determine  the 
kind  and  measure  of  relief. 

The  present  Treatise,  of  course,  attempts  no  such  wide  range, 
and  to  accomplish  no  such  ambitious  design.  It  professes  merely 
to  consider  and  discuss  the  new  principles  of  pleading  (as  distinct 
from  practice)  adopted  by  the  Code,  and  to  refer  to,  and  comment 
upon,  the  adjudicated  decisions  thereon  ;  and  also  to  compare  these 
principles  and  decisions  with  the  established  principles  and  adjudi- 
cated cases  before  the  Code.  It  professes  also  to  consider  and  note 
the  changes  effected  by  the  Code,  and  to  discuss  and  point  out  the 
rules  Avhich  now  exist,  to  test  the  sufficiency  of  the  pleadings ;  to 
apply  these  rules  in  detail  to  the  various  pleadings  on  the  part  of 
either  party  —  the  complaint,  the  answer,  the  reply,  the  demurrer  — 
and  to  compare  the  nature,  object,  and  use,  as  well  as  the  mode  and 
manner  of  allegation,  of  each  of  these  pleadings,  with  its  corre- 
sponding pleading  under  the  former  law  or  equity  system ; 
[*17]  and  finally  to  consider  the  effect  of  the  pleadings,  *  and  the 
rules  for  the  construction  thereof  under  the  Code,  together 
with  some  questions  of  a  practical  nature  connected  therewith. 
This  will  be  found,  in  the  main,  to  comprise  the  entire  scope  of  the 
work.  It  is,  of  course,  from  the  nature  of  the  subject,  and  the 
changes  made  by  the  Code,  essentially  different  from  any  former 
treatise  on  pleading ;  and,  from  its  generality,  embracing  as  it  does 
the  subject  of  pleading,  both  at  law  and  in  equity,  must  be,  in  many 
other  respects,  far  from  complete. 

It  is  believed,  however,  to  present  a  full  and  correct  view  of  the 
main  features  of  the  new  system ;  together  with  such  of  the  former 
general  rules  of  pleading,  as  are  applicable  to  that  system,  and  as 
do  not  conflict  with  the  provisions  of  the  Code  and  the  adjudicated 
cases  thereon. 

The  propriety  of  accompanying  the  volume  with  a  collection  of 
approved  precedents  of  pleading,  adapted  to  the  text,  and  drawn  in 
conformity  with  the  principles  there  laid  down,  has  been  suggested, 
and  at  first  commended  itself  to  the  judgment  of  the  author;  but 
on  reflection  the  design  was  abandoned.  Pleading,  as  we  have  seen, 
is  a  matter  of  substance  and  not  of  form,  under  the  Code.  It  does 
not  rest  upon  technical  rules  and  formulas,  but  upon  those  broader 


INTRODUCTION". 


legal  principles  which  determine  the  right  of  action,  the  measure 
and  kind  of  relief,  and  the  nature  of  the  evidence  which 
[*18]  sustains  it.  Every  *  right  of  action,  involving,  as  it  does, 
different  legal  principles,  and  being  based  upon  different 
facts  and  circumstances,  may  require  a  different  form  of  statement; 
and  no  collection  of  precedents,  however  extensive  it  might  be, 
would  be  sufficient  to  furnish  a  form  for  every  kind  of  remedy 
sought  in  our  courts.  Under  the  Code,  precedents  are,  in  general, 
to  be  invented,  and  cannot  in  all  cases  be  prepared  beforehand  for 
use.  The  pleader  is  required  to  understand  the  legal  principles  on 
which  his  action  is  based,  the  evidence  necessary  to  support  it,  the 
general  rules  of  pleading,  and  make  his  forms  for  himself.  It  is 
not,  however,  meant  by  this,  that  a  collection  of  approved  prece- 
dents of  pleading,  under  the  Code,  might  not  be  of  considerable 
utility,  not  only  in  practice,  but  also  in  illustration  of  the  princi- 
ples discussed  in  the  text.  On  the  contrary,  the  author  has  no 
doubt  such  a  collection,  if  carefully  and  correctly  made,  would  be 
useful  and  serviceable,  and  might  moreover  tend  to  establish  a 
uniformity  in  the  language  of  an  ordinary  pleading,  which  would 
certainly  be  desirable  to  counsel,  and  tend  to  facilitate  business  in 
court. 

Should  the  wants  of  the  profession  require,  and  the  approval  of 
the  present  work  justify  such  a  collection  of  precedents  and  forma 
of  pleading,  it  can  be  readily  supplied  hereafter. 


[*19]  *  CHAPTER  1. 

OF  PLEADING  IN  GENERAL. 

The  term  Pleadij^g,  at  common  law,  signified  the  allegations  of 
parties  to  suits  when  they  are  put  in  a  proper  legal  form.  It  was  in 
strictness  no  more  than  setting  forth  that  fact,  which,  in  law,  showed 
the  justice  of  the  demand  made  by  the  plaintiflf,  or  the  discharge 
and  defense  made  by  the  defendant.' 

In  equity,  also,  pleading  signified  nothing  more  than  the  written 
allegations  of  the  respective  parties,  containing  the  facts  of  the  case 
(in  a  due  legal  form)  on  Avhich  the  one  party  founded  his  title  to 
rehef,  or  the  equitable  aid  of  the  court,  and  the  other  his  discharge 
and  defense.* 

In  the  present  chapter,  treating  of  the  general  nature  of  pleading 
under  the  former,  as  well  as  under  our  present  system,  the  subject 
will  be  considered  in  the  following  order : 

1.  Origin  and  history  of  Pleading. 

2.  Pleading  as  it  existed  before  the  Code. 

3.  General  changes  effected  by  the  Code. 

4.  Of  the  rules  to  determine  the  sufficiency  of  Pleading  under  the  Code. 


[*  20]  *  SECTION  I. 

ORIGIN  AND  HISTORY  OF  PLEADING. 

The  system  known  by  the  name  of  pleading  is  of  remote  antiq- 
uity. Mr.  Stephen,  in  a  note  to  his  Treatise  on  Pleading,^  traces 
the  origin  and  meaning  of  the  word  jplca.  He  thinks  it  of  Nor- 
man origin,  derived,  perhaps,  from  the  Roman  ji?Z«aV?^7/^,  the  name 
applied  to  the  rescripts  of  the  emperors,  and  the  judicial  decisions 
of  the  Roman  empire.  It  was  anciently  used  to  signify  suit  or 
action ;  but  within  the  meaning  of  the  later  English  law  is  taken 
in  its  more  restricted  sense  of  makiny  allegations  in  a  cause. 

The  pleadings  in  equity,  it  is  said,  were  probably  borrowed 
from  the  civil  law,  or  from  the  common  law  (which  is  a  derivative 
from  the  civil  law),  or  from  both.  Hence,  at  ahnost  every  step, 
there  may  be  traced  coincidences  between  the  pleadings  and  prac- 

'  Bacon's  Abr.,  Title  Pleading,  '  Note  1,  Appendix. 

*  Story's  Eq.  PL,  §4. 


8  OIT  PLEADING  IN  GENERAL.  [CH.  I. 

tice  ill  chancery,  and  the  pleadings  and  practice  in  a  Eoman  suit 
and  in  an  ecclesiastical  suit/ 

These  two  modes  of  pleading,  however,  from  the  earliest  period 
were  kept  separate  and  distinct,  and  still  are  to  this  day  in  Eng- 
land, and  most  of  the  States  in  the  Union,  where  the  common 
law  and  equity  are  administered,  if  not  in  different  tribunals, 
yet  under  different  forms  of  proceeding.  The  Code 
[*21]  *  of  Procedure  of  New  York  attempts  to  unite  and  blend 
them  together. 

Anciently  the  appearance  of  the  parties  in  court,  in  actions  at 
law,  was  an  actual  appearance,  and  the  pleading  was  an  oral 
altercation  in  open  court,  in  presence  of  the  judges.  This  mode 
was  in  use  in  the  reign  of  Henry  III,  and  written  pleadings,  it  is 
supposed,  were  not  introduced  till  about  the  middle  of  the  reign 
of  Edward  III.' 

It  was  the  office  of  the  judge  to  superintend  this  oral  conten- 
tion, and  to  compel  the  pleaders  so  to  manage  their  alternate 
allegations  as  at  length  to  arrive  at  some  specific  2>oint  or  inatter 
affirmed  on  tJie  one  side  and  denied  on  the  other.  The  result 
being  attained,  the  parties  are  said  to  be  at  Issue.  If  the  issue 
proved  to  be  one  of  law,  it  fell  to  the  judge  to  decide ;  if  of  fact. 
the  parties  referred  it  to  one  of  the  various  modes  of  trial  then 
practiced,  or  to  sucli  trial  as  the  court  should  think  proper.' 

The  change  of  oral  pleading  in  open  court  for  that  of  written 
statements  led  to  no  departure  from  the  ancient  style  of  allega- 
tion. The  pleadings  ever  since  continued  to  be  framed  upon  the 
pame  principles  and  to  pursue  the  same  forms  as  when  they  were 
oral. 

Pleading  is  said  to  have  been  first  methodically  formed,  and 
cultivated  into  a  science,  in  the  reign  of  Edward  L  From  that 
time  tlie  judges  began  to  prescribe  and  enforce  certain  rules  of 
statement,  of  which  some  had  been  established  at  periods  con- 
siderably more  remote,  and  others,  apparently,  were  then, 
[*22]  from  time  to  time,  first  introduced.*  A  *  modern  writer 
thinks  the  science  was  in  a  state  of  progressive  advance 

'  Story's  Eq.  PI.,  §  14,  and  see  note  to  *  3  Reeves,  95. 

this  section,  tracing  an  outline  of  the  '  Steph.  PI.  24. 

proc»;e(lings  in   suits  under  the  civil  ■*  Steph.  on  PI.  123. 
and  canoo^law. 


SEC.  I.J  ORIGIlSr  AND   HISTORY   OF   PLEADING.  9 

till  the  reigns  of  Henry  YI  and  Edward  IV,  when  it  was  "  culti- 
vated with  so  much  industry  and  skill  that  it  was  raised  to  a 
Budden  perfection  in  the  course  of  a  few  years."  *  But  Lord 
Coke  and  Sir  M.  Hale  refer  to  the  reign  of  Edward  III  as  the 
period  when  pleading  had  attained  its  highest  point  of  excellence. 
The  latter  complains  that  the  judges  and  pleaders  had  become 
"  somewhat  too  curious,  and  that  the  science  had  degenerated 
from  its  primitive  simplicity."  The  "  trivial  niceties  "  and  prolix- 
ity, of  which  he  complains,  are  abuses  that  continued  to  exist  till 
long  after  his  day,  and  though,  in  modern  times,  much  checked 
and  discouraged,  were  never  entirely  extirpated." 

Pleadings  being  thus  modified,  from  time  to  time,  by  the  appli- 
cation of  a  variety  of  arbitrary  and  technical  rules,  were  gradually 
moulded  and  refined,  through  the  course  of  centuries,  into  that 
system  of  special  pleading  peculiar  to  the  English  common  law, 
from  which  our  own  system  was  derived. 

It  was  a  feature  of  this  system  that  every  cause  of  action  had 
its  appropriate  form  of  remedy,  and  each  form  its  rules  peculiar 
to  itself  The  origin  of  these  different  forms  of  action  is  a  curi- 
ous portion  of  the  history  of  English  jurisprudence,  and  it  may 
not  be  uninteresting  or  unprofitable  here,  briefly,  to  notice  this 
branch  of  the  subject,  as  it  will  serve,  in  some  degree,  to  account 
for  and  explain  the  diflference  which  existed,  from  the  earliest 
periods,   between   the  pleadings   and  practice   at   law    and   in 

equity. 
[*23]  *It  has  been  well  observed  that,  in  strictness,  there 
were  not  and  could  not  be  distinct  systems  of  law  and  of 
equity.  They  were,  more  properly,  distinct  systems  of  pleading 
and  practice,*  Both  originally  issued  from  the  same  source  and 
•were  based  upon  the  same  laws.  Thus,  actions  at  law,  in  the 
earliest  ages  of  English  jurisprudence,  and  before  the  system 
which  we  now  call  equity  was  established,  were  commenced  by 
the  issuing  of  what  were  afterward  known  as  original  writs, 
technically  termed  hrevia.*  These  writs  were  issued  on  the  peti- 
tion and  application  of  the  suitors  out  of  chancery.     The  chan- 

*  3  Reeves,  434.  ■*  Their  use   may  be  traced  as    far 

'  Appendix  to  Stepli.  PI.,  Note  35.  back  as  the  time  of  Henry  II,  and  they 

'  See  Const.  Debates,  184G,  jjp.  441,  are  generally  supposed  to  have  been 

443,  443,  Argus  ed.  of  Norman  origin. 

2 


10  ON  PLEADING  IN  GENERAL.         [CH.  I. 

cellor,  deriving  liis  power  from  the  crown,  as  the  head  and  fountain 
of  justice,  administered  legal  redress  in  all  cases.  On  the  appli- 
cation of  a  suitor,  the  chancellor,  instead  of  administering  the 
relief  himself,  issued  an  original  writ^  under  the  great  seal,  in 
the  king's  name,  directed  to  the  sheriff  of  the  county  where  the 
injury  was  alleged  to  have  been  committed,  containing  a  summary 
statement  of  the  cause  of  complaint,  and  requiring  the  party  to 
do  justice,  or  to  appear  before  some  of  the  king's  judges  or  courts, 
to  whom  the  writ  was  directed,  and  who  were  authorized  by  it  to 
determine  the  controversy  between  the  parties.  Thus,  the  writ 
was,  in  substance,  a  commission  from  chancery  to  an  inferior 
tribunal,  to  hear  and  determine  the  claim,  instead  of  its  being 
heard  in  the  first  instance  by  the  chancellor  himself.  It  was 
regarded  as  essential  to  the  due  institution  of  the  suit, 
[*24]  and  as  giving  jurisdiction  to  the  court  in  *  which  the 
defendant  was  directed  to  appear.  These  writs  were  con- 
ceived in  fixed  and  certain  forms,  and  differed  from  each  other 
according  to  the  nature  of  the  injury  they  were  designed  to  redress. 
In  the  course  of  time  they  came  to  have  the  effect  of  limiting 
and  defining  the  right  of  action  itself,  so  that  no  cases  were  con- 
sidered within  the  scope  of  judicial  remedy  but  those  to  which 
the  language  of  some  known  writ  was  found  to  apply.'  It  was 
soon  found,  however,  that  cases  of  injury  arose  for  the  redress  of 
which  no  known  precedent  or  form  of  action  could  be  found. 
Accordingly,  a  statute  was  passed  in  the  reign  of  Edward  I, 
authorizing  the  clerks  of  chancery  to  issue  new  writs  as  occasion 
might  require.  Under  this  statute  many  writs  were  issued,  which, 
being  analogous  to  writs  of  tresj>ass,  were  denominated  trespass 
on  the  case. 

It  was  supposed,  at  one  time,  there  were  fifty-nine  of  these 
diflerent  original  writs,  or  forms  of  actions,  in  use.  They  were, 
however,  much  reduced  in  number,  from  time  to  time.  At  the 
adoption  of  the  Code,  in  this  State,  there  were  but  ten  forms  of 
personal  actions.  No  new  writ  had  been  invented  for  the  last 
three  hundred  years.* 

It  was,  however,  found  difficult  or  impossible  to  invent  different 
forms  of  action,  sufficient  to  afford  the  appropriate  remedy  for 

•  Steph.  on  PI.  8 ;  1  Burr.  Pr.  10.  «  See  Report,  Com.  Ckxie,  129. 


SEC.  I.]  OEIGIN   AND   HISTORY   OF   PLEADUsTG.  11 

every  ca.se  which  might  arise.  Though  remedies  and  forms  of 
action  had  been  provided  to  enable  suitors  to  recover  money 
demands,  or  specific  chattels,  or  lands,  yet  there  were  none 
[*25]  to  *  enable  them  to  restrain  a  party  from  the  commission 
of  a  wrong,  to  enforce  the  specific  execution  of  a  contract, 
or  obtain  other  specific  relief.  The  exigencies  of  society  soon 
rendered  this  necessary,  and  the  remedy  was  accordingly  provided. 
When  the  suitor  came  with  his  petition  to  the  court  of  chancery 
for  specific,  or,  as  it  is  now  called,  equitable  relief,  and  found  no 
appropriate  writ  or  form  of  action  whereby  to  obtain  it,  the  chan- 
cellor, instead  of  devising  a  new  writ  and  sending  him  with  it  to 
the  courts  of  law,  to  obtain  redress  under  that  form,  heard  the 
petition  and  administered  the  relief  in  person.  This  was  the 
origin  of  equity  jurisprudence.  It  is  to  be  particularly  observed 
that  no  argument  can  be  drawn  from  the  origin  of  the  two  systems 
in  favor  of  an  inherent  difference  between  legal  and  equitable 
relief.  There  is  no  reason  why,  in  the  earlier  ages  of  English 
jurisprudence,  a  writ  should  not  have  been  furnished  to  a  suitor, 
providing  him  with  a  form  of  action  at  law  to  restrain  the  com- 
mission of  an  injury,  or  to  enforce  a  special  contract,  as  well  as  to 
recover  chattels  or  real  estate.  In  such  case  these  actions,  now 
classed  as  equitable,  would  have  been  legal,  and  governed  and  con- 
trolled by  legal  forms  as  much  as  the  action  of  replevin  or  eject- 
ment. 

The  difierent  forms  of  pleading  adapted  to  the  two  classes  of 
cases  grew  out  of  this  practice  of  administering  relief  in  two  dis- 
tinct tribunals.  The  pleadings  at  common  law,  as  we  have  seen; 
were  moulded  into  a  system  in  the  courts  of  law,  and  were,  as  has 
been  well  expressed,  "  the  necessary  growth  and  consequence  of 
the  gradual  refinement  of  English  jurisprudence  through 
[*26]  a  succession  of  centuries."  The  *  allegations  of  the  par- 
ties, as  we  have  also  seen,  difierent  from  the  practice  of 
the  civil  law,  were  originally  oral ;  and  the  judges  applied  their 
own  rules  and  invented  their  own  forms  of  pleading  to  attain  the 
specific  object  in  view,  namely,  the  production  of  an  issue. 

In  chancery,  however,  the  forms  of  the  civil  law  obtained.  Tho 
early  chancellors,  being  either  ecclesiastics  or  statesmen,  were 
many  of  them  bred  up  in  the  jurisprudence  of  the  civil  and  canon 


12  ON  PLEADING  IN  GENEKAL.         [CH.  I. 

law,  and  it  was  natm-al  for  tliem,  in  tlie  administration  of  tlieir 
judicial  functions  in  the  court  of  chancery,  to  transfer  into  that 
court  the  modes  of  proceeding  with  which  they  were  most  fam- 
iliar." Finding  the  modes  of  proceeding  at  law  limited  and  re- 
strained by  a  system  of  rules  so  arbitrary  and  inflexible  as  to  render 
those  modes  inadequate  to  afford  relief  in  a  large  class  of  cases,  in 
which,  by  the  common  law  of  England,  relief  ought  properly  to 
be  granted,  they  disregarded  those  modes  and  forms,  and  threw 
off"  entirely  the  restraints  which  confined  and  limited  the  proceed- 
ings in  actions  at  law.  They  adopted  no  particular  form  of 
action ;  they  departed  entirely  from  the  system  of  special  plead- 
ing. The  suitor  simply  presented  his  petition  or  complaint, 
answering  to  the  libel  of  the  civil  law,  briefly  stating,  in  writing, 
the  facts  of  the  case,  the  claims  he  sought  to  enforce,  or  the  injury 
of  which  he  complained,  and  asked  the  relief  he  desired.  And 
the  court,  if  he  proved  his  case  and  showed  himself  entitled 

to  that  relief,  administered  it  to  him  at  once.  The  plead- 
[*27]     ings  *  in  this  early  period  of  equity  jurisprudelice  were 

of  great  simplicity  and  brevity.  The  cases  in  which  resort 
was  had  to  equity  were,  as  yet,  few,  and  the  facts  of  no  great 
oomplexity  or  difficulty  of  detail." 

Nor  was  there  any  tiling  either  in  the  nature  of  the  controversy, 
or  the  relief  prayed  for,  which  rendered  a  diff'erent  mode  of  prac- 
tice and  pleading  necessary  in  law  and  in  equity.     It  was  merely 
'  Story'8  Eq.  PI.,  §  14.  «  Story's  Eq.  PI.,  §  11. 

1  The  old  chancery  bill  contained  very  little  more  than  the  stating  part,  that  is  to  say, 
a  statement  of  the  facts  which  entitled  the  plaintiff  to  the  relief  he  demanded.  In 
Pariridoe  v.  Haycroft,  H  Vesey,  574,  Lord  Eldon  says,  he  had  seen  such  a  bill,  with  a 
Bimple  prayer,  that  the  defendant  may  answer  all  the  matters  aforesaid,  and  then  the 
prayer  for  relief.  He  also  remarks  that  Lord  Kenyon  never  would  put  in  the  chanjing 
■part  of  a  bill,  which  does  little  more  than  unfold  and  enlarge  the  statement.  Mr.  Mit- 
ford  in  his  treatise  on  E(iuity  Pleadinjrs  has  preserved  the  form  of  an  ancient  bill, 
copied  from  the  record  commission,  and  filed  in  the  reign  of  Henry  V.  The  following 
Is  a  copy  of  this  curious  document: 

"To  the  Reverend  father  in  God,  the  Bishop  of  Winchester,  Chancellor  of  England. 
Beseecheth  humbly,  your  poor  orator,  John  Bell  of  Calls,  soldier,  and  Katherine  his 
wife,  that  whereas  William  Atte  Wood,  otherwise  called  William  Atte  Doune  of 
JtiM'hcster.  father  to  the  said  Katherine,  since  died,  heretofore  was  seized  in  his  de- 
mcsned  as  of  fee  of  one  messuage  with  the  appurtenances  in  Rochester,  situate  in  the 
churchyard  there,  the  which  William,  in  the  feast  of  St.  Michael,  in  the  twenty-second 
jreur  of  the  reign  of  King  Richard  the  Second,  since  the  coiujuest,  let  to  farm  to  one 
BInioii  Stclhard  of  Glllingliam,  the  same  messuage  with  the  appurtenances  for  term 
of  seven  years  then  m-xt  ensuing,  for  a  certain  stim,  to  him  annually  to  be  paid  ;  the 
which  Simon  within  the  first  two  years  was  ousted  by  the  Executors  of  the  said  Wil- 


SEC.  I.J  OR^^OIN   AKD   HISTORY   OF   PLEADING.  13 

the  result  of  circumstances.  Thus,  for  example,  if  instead  of 
issuing  the  original  writ  in  the  lirst  instance  in  an  action  of  as- 
sumpsit or  debt,  the  chancellor  had  heard  the  case  and  adminis- 
tered the  relief  himself,  according  to  the  forms  and  modes  of 
procedure  of  the  civil  law,  there  never  would  have  grown  up  in 
England  two  such  systems  as  those  of  law  and  equity. 
[*28]  *  An  action  to  recover  damages  on  a  bond  or  a  promissory 
note  might  have  been  sustained,  as  well  in  the  form  of  a 
suit  in  equity,  as  in  a  suit  at  law.  The  plaintiiF's  allegation,  or 
statement  of  demand,  might  as  well  have  been  made  in  the  form 
of  a  bill  of  complaint,  as  in  that  of  a  declaration.  But  this  was 
prevented  by  the  inflexible  rule,  that,  if  the  party  could  obtain 
relief  in  any  known  form  of  action  in  the  courts  of  law,  he  could 
not  claim  it  directly  from  the  chancellor  in  equity.  Similar  con- 
sequences would  have  resulted,  had  the  chancellor  declined  to 
determine  any  controversy  between  suitors,  and  sent  them  indis- 
criminately, by  the  invention  of  new  writs  and  new  forms  of 
action,  to  the  courts.  An  uniform  system  of  pleading  and  pro- 
ceeding would  doubtless  then  have  characterized  all 
[*29]  judicial  ■^  proceedings,  and  we  should  have  found  existing 
in  our  day  the  very  thing  at  which  the  code  aims,  and  which 
is  said  to  be  so  difficult,  if  not  impossible,  to  obtain  under  the  com- 
mon and  statute  law  of  the  land,  namely,  the  abolition  of  the 
distinction  between  legal  and  equitable  relief,  as  well  as  between 
legal  and  equitable  remedies. 

liam  because  he  would  not  attorn  to  them  in  the  payment  of  the  rent  of  the  same 
messuage,  the  which  messuage  since  then  was  several  times  alienated  to  divers  per- 
sons, and  now,  so  it  is,  very  gracious  lord,  that  one  Piers  Savage,  now  occupier  of  the 
same  messuage,  for  the  whicli  messuage  he  hath  not  paid  more  than  one  mark,  bath 
oftentimes  been  required  to  deliver  to  the  same  John  and  Katherine,  this  same  mes- 
suage as  the  heritage  of  the  same  Katherine,  and  he  hath  not  delivered  it  to  tliem,  nor 
yet  will,  but  detains  it,  in  destruction  of  their  poor  estate,  and  perpetual  disherison 
of  the  same  Katherine,  if  they  sliould  not  obtain  remedy  by  your  gracious  aid  in  thia 
behalf,  and  the  which  John  and  Katherine  are  so  poor,  and  the  said  John  so  ill,  that 
they  cannot  pursue  the  common  law.  Please  your  very  gracious  lordship  to  consider 
the  premises,  and  therefroni  to  grant  a  writ  directed  to  the  said  Piers,  to  appear  before 
you  at  a  certain  day,  upon  a  certain  pain  by  you  to  be  limited,  for  to  answer  of  the 
matter  aforesaid,  and  to  do  right  as  good  conscience  demandeth  it,  and  this  for  love 
of  God,  and  in  work  of  charity." 

It  will  be  observed  that  the  remedy  sought  here  is  similar  to  that  obtained  in  an 
action  of  ejectment.  The  excuse  of  the  parties  for  coming  to  the  chancellor  is  that 
they  "are  so  poor,  and  the  said  John  so  ill,  that  they  cannot  pursue  the  common 
law."  It  would  seem  from  this,  that  in  those  primitive  times,  an  existing  commoE 
law  remedy  did  not  absolutely  preclude  the  party  from'applying  for  relief  in  equity. 


14  ON^  PLEADING  ITST   GENEEAL.  [CH.  I. 

Such  is  the  origin  of  the  difference  between  the  pleadings  and 
proceedings  in  chancery  and  tliose  in  actions  at  law.  This  dif- 
ference became  still  more  striking  as  the  two  systems  grew  up 
gradually  side  by  side  together.  "We  have  already  noticed  what 
the  pleadings  at  law  became.  In  chancery,  as  the  court  attained 
more  extensive  jurisdiction  and  exercised  more  diversified  powers, 
new  modes  of  pleading  were  from  time  to  time  adopted,  fitted  for 
its  own  peculiar  purposes,  and  the  pleading  and  practice  in  chan- 
cery soon  grew  into  a  distinct  and  independent  system.  What 
the  pleadings  in  equity  finally  became,  and  what  they  were  in 
this  State  and  in  other  States  of  the  Union,'  under  the  old  system 
which  we  inherited  from  England,  is  well  expressed  by  Judge 
Story  in  his  Commentary  on  Equity  Pleading. 

It  has  become,  he  says,  "  A  science  of  great  complexity  and  a 
very  refined  species  of  logic,  which  it  requires  great  talents  to 
master  in  all  its  various  distinctions  and  subtle  contrivances,  and 
to  apply  it  with  sound  discretion  and  judgment  to  all  the  diver- 
sities of  professional  practice.  The  ability  to  understand 
[*30]  what  is  the  appropriate  remedy  and  relief  for  *  the  case ; 
to  shape  the  bill  fully,  accurately  and  neatly,  without 
deforming  it  by  loose  and  immaterial  allegations,  or  loading  it 
with  superfluous  details,  and  to  decide  who  are  the  proper  and 
necessary  parties  to  the  suit.  The  ability  to  do  all  this  requires 
various  talents,  long  experience,  vast  learning,  and  a  clearness  and 
acuteness  of  perception  which  belong  only  to  very  gifted  minds." 


SECTION  II. 

OP  PLEADING  AS  IT  EXISTED  BEFORE  THE  CODE, 

The  origin  of  pleading,  at  law  as  well  as  in  equity,  was  noticed 
in  the  last  section.  In  the  present  section  it  is  proposed,  briefly, 
to  consider  the  distinguishing  features,  and  the  dilferent  modes 
of  allegation  which  characterized  the  two  systems. 

It  has  been  observed  that,  in  equity,  there  were  no  j^articular 
forms  of  action  in  use.     The  complainant  stated  his  case  and 

'  Exrept  Louisiana,  where  the  Chancery  or  civil  law  forms  are  used  in 
all  cases. 


SEC.  II.  J         ORIGIN  AND   HISTORY   OF  PLEADING.  15 

prayed  for  his  relief,  and,  if  the  case  was  proper  for  the  rehef 
demanded,  and  it  appeared  that  the  common-law  com-ts  had  no 
jurisdiction,  the  relief  was  granted. 

In  suits  at  law  there  were  different  kinds  of   civil   actions. 

Actions  were  generally  divided  into  three  classes,  real^ 

[*31]    ^personal  and  mixed.^     Personal  actions  *  were  divided 

into  actions  ex  contraotu  and  actions  ex  delicto.     Actions 

ex  contractu  were  principally  assuinpsit,  covenavit,  debt  and  det- 

inue  j  those  ex  delicto,  case,  trover,  rejplevin  and  trespass? 

The  action  of  detinue  was  abolished  in  this  State  by  statute,' 
and  its  place  supplied  by  replevin.  Two  other  forms  of  action 
6X  Gont/ractu  might  also  be  added  to  the  above,  namely,  account 
and  o/nnuity.  The  former,  though  given  by  statute  in  certain 
eases,*  was  not  often  used,  and  the  latter  had  become  entirely 
obsolete.  It  was  essential  that  some  one  of  these  forms  of  action 
should  be  selected  by  the  plaintiff,  who  sought  a  legal  redress  for 
an  injury  to  his  personal  rights,  and  it  was,  at  common  law,  essen- 
tial, too,  that  he  should  select  the  proper  form  of  action,  otherwise 
he  must  fail.  In  equity  the  suitor  was  relieved  of  this  embarrass- 
ment, but  he  sometimes  encountered  another  nearly  as  great, 
namely,  in  determining  whether  the  relief  he  asked  was  not  such 
as  might  be  obtained  in  some  one  of  these  forms  of  action  at  law. 
If  he  had  an  adequate  remedy  at  law^  he  was  turned  out  of  a  court 
of  equity. 

General  Couese  of  Pleading  in  an  Action  at  Law. 

Having  determined,  in  a  court  of  law,  the  form  of  the  action  to 
be  prosecuted,  the  next  step,  on  the  appearance  of  the  parties  in 
com*t,  was  their  various  statements  or  allegations,  termed  the 
pleadings. 

These  were :  1.  The  Declaration  ;  2.  The  Plea ;  3.  The 

[*32]     Eeplication;  4.  The  Kejoinder ;  5.  The  Surrejoinder;  *  6. 

The  Rebutter ;  and  7.  The  Surrebutter.     There  was  also 

the  Demurrer,  which  was  a  pleading  in  the  nature  of  an  objec- 

1  Chit.  PI.  07.  ■*  1  R.  S.  750,  ^  9  ;  1  Edm.  St   701  ,  2 
'Chit.  PI.  97.                                             R.  S.  113,  t;2;  3EdnL  St.  117     3  Rill, 

2  3  R.  S.  553,  §  15  ;  2  E<ho.  St  573  '     59  •  r3  Barb  419] 
Grab   Pr    2d  ed,  85] 


16  ON  PLEADING  IN  GENERAL.         [CH.  I. 

tion  to  tlie  other  pleadings,  as  a  matter  of  law,  and  might  be 
pleaded  bj  either  party  and  at  any  stage  of  the  proceedings. 

The  first  pleading  on  the  part  of  the  plaintiff  was  the  dedara^ 
tion,  which  was  a  statement,  in  writing,  of  his  cause  of  action,  in 
legal  form.  This  declaration,  as  every  other  pleading  in  the  cause, 
was  re(piired  to  be  framed  agreeably  to  the  established  rules  and 
forms  of  pleading  (which  we  do  not  intend  now  to  notice),  and, 
if  defective  in  any  particular,  either  in  substance  or  form,  might 
be  objected  to,  as  insufficient  in  law,  by  demurrer,  on  the  part  of 
the  defendant.  Or,  if  the  defendant  did  not  demur,  he  might  deny 
the  declaration  to  be  true  in  point  of  fact ;  or,  if  it  could  not  be  so 
denied,  he  might  allege  some  new  matter  in  abatement,  or  suspen- 
sion of  the  action,  or  in  contradiction  to  the  plaintiff's  declaration, 
or  in  avoidance  of  it.  Such  answer,  in  fact,  on  the  part  of  the 
defendant,  was  technically  denominated  his  j!??6«.  To  the  defense 
thus  made  the  plaintiff  might  again,  in  his  turn,  reply,  either,  in 
case  of  a  demurrer,  by  re-asserting  his  declaration  to  be  sufficiei.s 
in  law  to  support  his  action,  and  referring  that  question  to  the 
judgment  of  the  court,  which  was  tenned  a  joinder  in  demur- 
rer ^  or,  in  case  of  a  special  plea,  he  might,  on  his  part,  demur  to 
such  plea  as  insufficient  in  law  to  constitute  a  defense,  or  he  might 
deny  it  to  be  true  in  point  of  fact,  or  allege  some  new  matter  in 
contradiction  to  it,  or  in  evasion  of  it,  according  to  circumstances, 
such  answer,  in  fact,  being  styled  a  replication.  To  the 
[*33]  replication  the  defendant  *  might  either  demur  upon  the 
law,  or  oppose  a  joinder  as  to  the  fact ;  and  to  the  rejoin- 
der the  plaintiff  might  demur,  or  oppose  a  surrejoinder  j  and  so  the 
parties  might  continue  to  proceed,  by  a  system  of  alternate  alle- 
gation and  objection,  denial  or  evasion,  technically  termed  the 
pleadings,  until  they  arrived  at  an  issue,*  that  is,  some  specific 
point  of  law  or  fact,  affii-med  on  one  side  and  denied  on  the  other, 
and  presenting  the  exact  question  for  the  court  to  determine.' 

In  Eqxdty.  The  course  of  pleading  in  a  suit  in  equity  was 
entirely  different. 

The  complainant  exhibited  to  the  court  his  bill  of  complaint. 
This  answered  to  the  declaration  in  a  suit  at  common  law,  or  to 

'  See  post,  chap,  viii,  §  1.  taken  from  Mr.  Burrill's  Treatise  on 

'  The  above  general  description  of    Practice,  vol.  1,  pp.  80,  81. 
the  course  of  pleading  in  an  action  is 


SEQ.  II.]         ORIGIiX   AND   HISTORY   OF   PLEADING.  17 

the  libel  of  the  civil  and  canon  law.  It  is  true,  bills  were  of 
various  kinds,  as  bills  of  Interpleader;  bills  of  Certiorari;  bi.ls 
praying  the  decree  or  order  of  the  court  touching  some  right 
claimed  by  the  party  exhibiting  the  bill,  or  some  wrong  done  in. 
violation  of  the  plaintiff's  rights.  Also,  bills  to  perpetuate  the 
testimony  of  witnesses,  and  bills  of  discovery, —  all  of  which 
were  termed  original  hills.^  Also,  a  variety  of  bills  not  orig- 
inal^ as  a  bill  of  Revivor ;  a  bill  of  Review ;  a  bill  to  impeach  a 
decree  on  the  ground  of  fraud,  etc.  But  though  they  were  of 
various  kinds,  there  was  only  one  form  of  bill.  It  was  addressed 
to  the  court,  contained  the  names  and  description  of  the 
[*34]  persons  ^  exhibiting  it,  a  narrative  of  the  facts  and  cir- 
cumstances of  the  plaintiff's  case,  and  of  the  wrong  or 
grievance  of  which  he  complained,  and  the  names  of  the  persons 
by  whom  done,  and  against  whom  redress  was  sought,  usually 
called  the  stating  jpart^  with  a  prayer  for  the  particular  relief 
demanded,  and  for  process  to  compel  the  defendants  to  appear 
and  answer.  The  bill,  also,  usually  contained  various  other 
parts,  such  as  the  charging  jpart  ',  the  interrogating  part;  the 
jurisdiction  clause,  etc.,  which  will  be  noticed  hereafter.^ 

If  any  ground  of  defense  was  apparent  on  the  face  of  the  bill 
itself,  either  from  the  matter  contained  in  it,  or  from  defect  in  its 
frame,  or  in  the  case  made  by  it,  the  defendant  might,  as  in  an 
action  at  law,  take  advantage  of  the  defect  by  demurrer.  If  the 
objection  was  not  apparent  on  the  face  of  the  bill,  then  it  must 
be  particularly  pointed  out  to  the  court,  either  by  plea  or  answer. 

A  plea  was  proper  when  the  matter  was  such  as  would  reduce 
the  case  to  a  single  point ;  as,  where  the  objection  was  to  the 
jurisdiction  of  the  court,  or,  for  the  want  of  proper  parties.' 

If,  however,  the  defendant  did  not  demur  or  plead  to  the  com- 
plaint, he  then  put  in  his  answer,  by  which  he  either  confessed 
and  avoided,  or  traversed  and  denied  the  several  parts  of  the  bill, 
or,  admitting  the  case  made  by  it,  submitted  to  the  judgment  of 
the  court  upon  the  bill,  or  upon  a  new  case  made  upon  the 
answer,  or  both.*     [An  answer,  unlike  a  plea,  was  not  required  to 

'  Story's  Eq.  PL,  §  10,  pp.  18, 19.  •♦Id.  130.     A  demurrer  was  not  prop- 

"^  See  post,  marg.  pp.  37,  .38.  er  to  an  answer  in  Equity. 

8  1  Barb.  Cli.  Pr.  114, 115 ;  [1  DanieU's 
Cli.  Pr.,  4tli  ed.,  603]. 


18  ON   PLEAD  II^G  IlSr   GENEEAL.  [CH  I. 

reduce  the  ease  to  a  single  point,  but  might  interpose  any  number 
of  defenses  not  inconsistent  with  each  other/  and,  in  some  cases, 

was  required  to  answer  in  support  of  a  plea."] 
[*35]  *The  last  pleading  was  the  replication  of  the  com- 
plainant to  the  defendant's  plea  or  answer.  It  was  noth- 
ing more  than  a  general  averment  of  the  truth  and  sufficiency  of 
the  bill,  and  a  denial  of  the  allegations  in  the  answer.  Its  office 
was  merely  the  production  of  an  issue.^  The  cause  was  then  in 
readiness  for  the  taking  of  proofs,  which  were  usually  taken  out 
of  court,  and  the  cause  subsequently  brought  to  a  hearing  upon 
the  pleadings  and  proofs  thus  taken. 

Such  were  the  general  features  of  the  two  systems  of-  pleading 
at  law  and  in  equity.  The  Code,  which  has  swept  them  both 
away,  has  adopted,  in  place  of  them,  a  system  substantially  similar 
to  the  mode  of  procedure  heretofore  practiced  in  Equity  and 
derived  from  the  Civil  Law.  The  change  effected  by  the  Code  of 
procedure,  in  pleadings,  constitutes,  however,  another  and  a  dis- 
tinct branch  of  the  subject,  and  will  be  discussed  in  the  next 
section. 


SECTION  III. 

GENERAL  CHANGES  EFFECTED  BY  THE  CODE. 

The  first  and  perhaps  the  most  radical  and  sweeping  change 
effected  by  the  Code,  upon  the  pleadings  in  civil  actions, 
[*30]  is  in  abolishing  the  distinction  which  *  existed  between 
actions  at  law,  and  suits  in  equity.  Prior  to  the  passage 
of  the  Code,  as  has  been  noticed  in  the  preceding  section,  the 
pleadings,  as  well  as  the  forms  of  proceeding,  in  a  suit  at  law, 
were  entirely  dissimilar  from  those  in  a  suit  at  equity.  Each 
court  had  its  distinct  and  separate  system  of  procedure  as  each 
had  its  distinct  jurisdiction. 

In  the  mode  of  pleading,  especially,  in  these  courts  there  was  a 
wide  distinction.  The  very  object  of  the  pleadings  seemed  to  be 
different,  and  the  rules  which  determined  their  sufficiency  totally 

'  1   Daniell's  Ch.  Pr.,  4th  ed..  713 ;        '  Storv's  Eq.  PI.,  §  681,  et  seq.  ;   1 
Story's  Eq.  PI.,  §  851  ;  1  Barb.  Ch.  Pr.     Barb.  Ch.  Pr.  116,  et  seq. 
130.  3  1  Barb.  Ch.  Pr.  249. 


SEC.  III.]      GENERAL  CHANGES  EFFECTED  BY  CODE.  19 

unlike.  In  an  action  at  law,  the  object  of  the  pleader  was  by  a 
formal  statement  of  facts,  or  of  those  legal  fictions  which  the 
formality  of  the  common  law  pei'mitted,  and  even  required,  to 
frame  a  single,  inate7'ial,  and  certain  issue,  either  of  law  or  of 
fact ;  that  is,  some  specific  point  or  matter,  afiirmed  on  one  side, 
and  denied  on  the  other.'  Hence  the  rule,  that  facts  themselves 
must  be  stated,  and  not  the  evidence  of  facts,  and  the  further 
rule  which  prohibited  the  parties  in  their  pleadings  from  stating 
more  than  one  matter  constituting  a  sufficient  ground  of  action 
in  respect  to  the  same  demand  or  a  sufiicient  defense  to  the  same 
claim.  The  same  count  in  the  declaration  could  not  contain  two 
promises  in  respect  to  the  same  subject-matter,  nor  could  the 
defendant,  in  the  same  plea,  rely  upon  or  set  up  several  distinct 
defenses.* 

The  object  of  pleading  in  equity,  and  the  rules  applicable 

thereto,  were  entirely  dissimilar.     One  of  the  main  prov- 
[*3Y]     inces  of  a   court   of  equity  was  to  enforce  *from  the 

defendant  a  discovery  of  evidence  in  aid  of  the  relief 
sought.  Hence,  in  equity,  the  plaintift'  was  permitted  to  state 
his  whole  case,  as  well  the  facts,  as  any  circumstances  tending  to 
prove  and  establish  the  facts,  with  a  minuteness  of  detail,  and  an 
informality,  entirely  incompatible  with  the  precision  required  by 
the  rules  of  pleading  at  law.  And  moreover,  the  pleading  was 
so  framed  as  to  be  used  directly  for  the  purposes  of  an  examina- 
tion of  the  other  jjarty,  not  only  upon  the  facts  alleged  in  the 
bill  upon  which  the  complainant's  title  to  relief  rested,  but  upon 
collateral  facts  and  matters  of  ^evidence  merely  tending  to  estab- 
lish these  facts.  Thus  in  addition  to  the  stating  part  of  the  bill, 
which  WIS  a  narrative  of  the  incidents  producing  the  grievance 
or  wrong  complained  of,  and  generally  of  all  the  facts  of  the  case 
upon  the  proof,  or  admission,  of  which  his  title  to  relief  depended, 
the  complainant,  in  the  usual  form  of  an  original  chancery  bill, 
was  permitted  to  set  forth  and  allege  various  other  matters  and 
collateral  circumstances  by  way  of  charge,  in  order  to  compel  the 
defendant  by  his  specific  answer  to  acknowledge  the  grievance 
alleged,  or  which  might  anticipate  and  controvert  his  defense; 
this  was  called  the  charging  part  of  the  bill.  So,  too,  as  a  principal 
'  Stppli.  on  Plead.  24.  «  1  Glut.  Plead.  326. 


20  OlS"   PLEADING   IN"   GENERAL.  [OH.  I. 

end  of  an  answer  by  the  defendants  under  oath,  tliey  being 
required  to  admit  or  deny  every  allegation  in  the  bill,  was  to 
supply  proof  of  the  matters  necessary  to  support  the  plaintiff's 
case,  and  as  experience  proved  that  the  substance  of  the  matters 
charged  in  the  bill  might  fi*equently  be  evaded  by  answering 

according  to  the  letter  only,  it  became  a  practice  to  add 
[*38]     to  the  general  *  requisition  that  the  defendants  should 

answer  the  contents  of  the  bill,  a  repetition  by  way  of 
interrogatory  of  the  matters  most "  essential  to  be  answered, 
adding  to  the  inquiry  after  each  fact,  an  inquiry  of  the  several 
circumstances  attendant  upon  it,  and  the  variations  to  which  it 
might  be  subject,  with  a  view  to  prevent  evasion,  and  compel  a 
full  answer.  This  was  commonly  called  the  interrogating  2)cirt 
of  the  bill.'  Its  object  was  to  preclude  evasiveness  in  the  answer. 
The  whole  attention  of  the  draftsmen,  says  Mr.  Lube  in  his 
accurate  and  scientific  analysis  of  equity  pleadings,  was  turned 
"  to  this  single  point,  of  putting  the  question  in  every  variety  of 
form,  to  elicit  a  full  and  definite  reply,  and  to  prevent  the  defend- 
ant's having  any  loop-hole  to  escape  upon  a  negative  pregnant. 
In  fact  this  part  of  the  bill  is  altogether  subservient  to  the  office 
which  the  bill  performs,  of  an  examination,  and  should,  therefore, 
omit  nothing  essential  to  the  proof  and  elucidation  of  the  state- 
ment."* In  addition  to  these  matters  the  ordinary  original  equity 
bill  contained  the  general  charge  of  confederacy,  i\ie  jurisdiction 
clause,  alleging  that  the  acts  complained  of  are  contrary  to  equity, 
and  that  the  complainant  has  no  adequate  remedy  at  law,  and  the 
prayer  for  process  to  bring  the  de^ndants  into  court  and  answer 
the  bill,  etc.  We  are  now  to  inquire  what  changes  upon  this 
mode  of  pleading  have  been  effected  by  the  Code ;  and  how  far 

and  to  what  extent  the  old  common-law  declaration,  and 
[*39]     the  bill  in  equity  *  have  been  blended  into  the  complaint 

created  by  the  Code. 
In  the  first  place  it  is  to  be  remarked  that  the  Code  has  abol- 
ished the  distinctions  between  pleadings  and  the  forms  of  proceed- 
ing in  actions  at  law  and  suits  in  equity.  It  has  gone,  or  pretended 
to  go,  farther.  It  has  abolished  the  distinction  not  only  between 
legal  and  equitable  forms,  but  between  legal  and  equitable  reme- 
» Mitford's  Eq.  PI.  76,  77.  » Lube's  Eq.  PI.  271,  372. 


SEC.  III.]      GENERAL  CHANGES  EFFECTED  BY  CODE.  21 

dies.  This  great  and  radical  change,  the  abolition  of  the  distinction 
between  actions  at  law  and  suits  in  equity,  and  of  the  form  of 
such  actions  and  suits,  is  the  foundation  of  the 'system  introduced 
by  the  Code,  and  is  contained  in  the  following  section : 

"  The  distinction  between  actions  at  law  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits  heretofore  existing,  are  abol- 
ished, and  there  shall  be,  in  tliis  State,  hereafter,  but  one  form  of 
action  for  the  enforcement  or  protection  of  private  rights,  and  the 
redress  of  private  wrongs,  which  shall  be  denominated  a  civil  action." ' 

The  language  of  this  section,  if  literally  construed,  would  seem 
to  be,  not  only  to  destroy  the  distinction  existing  in  the  modes  of 
obtaining  relief  which  characterized  the  proceedings  in  courts 
of  law  and  of  equity,  and  to  blend  the  two  separate  jurisdictions 
into  one,  but  to  change  the  very  nature  of  those  distinct  remedies 
which  were  formerly  sought  in  the  separate  tribunals.  The 
remarks  of  the  commissioners  upon  this  subject  seem  to  strengthen 
this  view  of  the  question.  Its  chief  object,  they  say,  is  to 
[*40]  declare  the  leading  principles  which  lie  at  the  *  foundation 
of  the  whole  proposed  system  of  legal  procedure,  and 
without  which  very  few,  if  any,  essential  reforms  can  be  effected 
in  remedial  law.'* 

Some  of  the  earlier  cases  under  the  Code,  however,  seem  to 
have  given  this  section  a  more  restricted  meaning.  In  Iltll  v. 
McCarthy,"  at  the  Madison  special  term,  it  was  held  that,  while 
the  Code  had  abolished  the  distinction  between  law  and  equity, 
so  far  as  the  forms  of  action  and  pleadings  and  proceedings  are 
concerned,  yet,  that  a  distinction  was  still  to  be  recognized  between 
legal  and  equitable  causes  of  action,  at  least  so  far  as  the  mode  of 
trial  was  concerned.  At  the  Dutchess  special  term,  in  the  same 
year,  it  was  held  that  the  Code  which  had  abolished  the  forms 
of  actions  had  retained  the  princijdes  which  govern  them.*  And 
in  the  New  York  superior  court,  at  general  term,'*  the  doctrine 
was  more  fully  and  distinctly  laid  down,  that,  though  the  Code 
had  abolished  the  distinction  between  legal  and  equitable  remedies, 
it  had  not  changed  the  inherent  diifercnce  between  legal  and 
e<|uitable  relief.     Justice  Sandfokd,  in  delivering  the  opinion  of 

»  Code,  ^  G9.  4  McMaMcr  v.  Booth,  4  How.  Pr.  427. 

-  Hee  First  Rep.  Com.  of  tlie  Code;  ^  Linden  v.  Hepburn,  3  Sandf.  GG8; 

BL't^,  also,  the  Preamble  to  the  Code.  G  How.  188. 
^3  C.  H.  49,  June,  1850. 


22  OlSr   PLEADING   IN   GENERAL.  [CH.  I, 

the  court  in  tlie  latter  case,  says :  "  "We  imagine  a  mucli  broader 
effect  has  been  claimed  for  the  abolition  of  the  distinction  between 
legal  and  equitable  remedies  than  was  ever  intended  by  the  legis- 
lature. The  first  section  of  the  Code  shows  M^hat  was  intended  by 
the  word  "  remedies."  It  is  limited  to  actions  and  special 
[*41]  proceedings,  and  the  declared  object  of  the  *  preamble  to 
the  Code  is  simply  to  abolish  the  distinction  between  legal 
and  equitable  actions.  There  is  no  ground  for  supposing  that 
there  was  any  design  to  abolish  the  distinction  between  the  modes 
of  relief  known  to  the  law  as  legal  and  equitable,  or  to  substitute 
the  one  for  the  other  in  any  case."  In  this  case  it  was  held  that 
where  the  plaintiff  demanded  a  judgment  of  forfeiture  of  a  lease, 
for  breach  of  conditions,  and  to  be  put  in  possession  of  the  prem- 
ises, he  had  no  right  to  an  injunction  in  the  same  action  to  restrain 
the  defendant  from  making  alterations  in  the  building,  etc.,  in 
violation  of  the  covenants  in  the  lease,  the  former  being  equiva- 
lent to  an  ejectment  at  law,  and  the  latter  being  purely  equitable 
relief,  and  the  one  being  totally  inconsistent  with  the  other.  But 
tlie  court  permitted  the  injunction  to  stand  on  the  stipulation  of 
the  plaintiff  not  to  take  judgment  for  the  forfeiture,  or  delivery 
of  possession  of  the  premises,  w^th  liberty  to  amend  the  com- 
plaint so  as  to  ask  for  damages. 

In  the  same  court  it  was  held,*  that,  notwithstanding  the  aboli- 
tion of  the  distinction  between  the  forms  of  action  at  law  and 
suits  in  equity,  yet,  that  even  in  the  pleadings,  or  the  manner  of 
stating  the  facts  constituting  the  plaintiff's  cause  of  action,  a  dis- 
tinction was  still  properly  to  be  made  between  the  statement  of  a 
matter  requiring  purely  a  legal  remedy,  and  one  which  heretofore 
would  have  been  classed  as  equitable.  While  in  the  former  case 
it  is  necessar}'  to  state  only  the  facts  constituting  a  cause 
[*42]  of  action  substantially  (without  regard  to  form)  in  *  the 
same  manner  as  in  a  declaration,  yet,  in  the  latter  case,  it 
is  often  necessary  to  state,  in  the  complaint,  tacts  which  will  bear 
upon  tlie  granting  of  costs,  or  of  the  particular  relief  demanded 
as  formerly  stated  in  an  equity  pleading. 

I  shall  have  occasion,  in  the  next  section  of  this  chapter,  to  con- 
sider more  fully  the  doctrine  attempted  to  be  established  by  some 

'  noward  v.  Tiffany,  3  Sandf.  695. 


SKC.  III.]      GENERAL  CHANGES  EFFECTED  BY  CODE.  23 

pf  the  cases,  tliat  a  distinction  is  still  to  be  recognized  under  the 
Code  between  the  rules  to  determine  the  suiliciency  of  pleading 
in  cases  for  legal  and  for  equitable  relief.  This  has  been  very 
ingeniously  urged,  in  two  or  three  of  the  earlier  cases,  which  will 
bo  hereafter  noticed  especially  by  Mr.  Justice  Selden,  in  Woode?i 
v..  Waffle,^  and  in  Rochester  City  Bank  v.  Suydam^  and  also  in 
the  recent  case  of  Le  Roy  v.  Marshall  and  others^  by  the  late 
Justice  Baeculo,  with  his  usual  acknowledged  ability.  But  the 
doctrine,  as  will  be  hereafter  noticed,  does  not  seem  to  be  approved, 
the  current  of  authority  being,  it  is  believed,  the  other  way.  I 
notice  the  above  cases  here  for  the  purpose  merely  of  presenting 
a  connected  view  of  the  decisions  upon  the  question  now  under 
discussion,  namely,  as  to  whether  the  Code  has  actually  abol- 
ished the  distinction  between  the  modes  of  relief  known  to  the 
law  as  legal  and  equitable  relief.     This,  it  is  held,  in  all  these 

cases,  has  not  been  done.  In  Wooden  v.  Wafflje^  Justice 
[*43]     Selden  lays  *  down  the  rule  that  the  constitution  itself 

establishes  a  distinction  between  law  and  equity,  and 
the  legislature  did  not  intend  to  blend  the  mode  of  proceed- 
ing at  law  and  in  equity  any  farther  than  was  compatible  with 
both  jurisdictions.  It  did  not  intend  to,  and  could  not,  ab- 
rogate "  distinctions  which  are  inherent  in  the  nature  of  things." 
Similar  views  are  expressed  by  him  in  the  case  of  Roches- 
ter City  Bank  v.  Suydam.  While  Justice  Bakculo  reiterates 
and  enforces  these  views  in  Le  Roy  v.  Marshall  and  others^ 
above  cited,  in  the  following  emphatic  language :  "  Indeed,  it 
would  be  matter  of  astonishment,  if  we  were  permitted  to  wonder 
at  any  thing  in  this  line,  that  any  man  of  '  common  understand- 
ing '  should  have  suffered  the  idea  to  enter  his  head,  that  legal 
and  equitable  proceedings  could  be  moulded  in  the  same  form 
and  be  measured  by  the  same  rules.  Every  person  who  has 
studied  and  understands  the  law  as  a  science,  knows  that  there  is 
substance  in  the  distinction  between  actions,  and  that  those 
requirements  which  superficial  observers  call  '  unmeaning  forms 
and  prolix  statements,'  were  really  wase  and  indispensable  safe- 

'  6  How.  Pr.  145,  Monroe  Special  Knowles  v.  Oee,  8  Barb.  300 ;  Merrifield 

Tenn,  Oct.,  1851.  v.  Coolep,  4  How.  Pr.  273. 

» 5  How.  Pr.  216 ;  see,  also.  Anon.  1        »  8  How.  Pr.  373,  Dutcliess  Special 

C  R.  49  ;  Floyd  v.  Dearborn,  3  C.  R.  17 ;  Term,  June,  1853. 


a4  ox   PLEADIXa  IN"   GENERAL.  [CII.  1 

guards,  and  protections  in  administering  tlie  most  important,  as 
well  as  the  most  intricate,  of  hmnan  sciences." 

So  also  in  Grary  v.  Goodman,^  which  was  a  decision  at  the 
general  terra,  Mr.  Justice  Sill,  in  the  opinion  of  the  court,  says : 
"  I  can  perceive  nothing  in  this  language  indicating  any  design 
to  dispense  with  equitable  actions  in  cases  in  which  they 
PM*]  have  been  previously  required  to  defend  or  enforce  *a 
party's  rights.  On  the  contrary,  the  continuance  of  con- 
troversies distinguished  as  legal  and  equitahle^  is  contemplated  in 
terms,  and  the  object  avowed  is  to  provide  a  mode  of  proceeding 
which  may  be  used  in  both."  The  same  justice,  in  Millihin  v. 
Gary,^  while  fully  recognizing  the  abolition  of  all  distinction  in 
lihe  pleadings  between  causes  of  action,  legal  and  equitable,  still 
recognizes  a  distinction  between  legal  and  equitable  reliefs 
remarking,  "  there  are  actions  of  legal  and.  equitable  cognizance, 
between  which,  as  heretofore,  the  constitution  and  laws  recognize 
a  distinction."  [It  is  now  well  settled  that  the  Code  did  not  aiiect 
the  substance  of  the  difference  between  legal  and  equitable  actions, 
and  the  pleadings  therein,^  although  both  kinds  of  relief  may  be 
obtained  in  the  same  action.*  And  the  old  rule  in  regard  to  the 
amount  necessary  to  confer  jurisdiction  upon  a  court  of  equity  is 
abrogated.'] 

Admitting,  then,  the  abstract  doctrine  insisted  on  in  these 
cases,  that  the  2?7nncij)les  of  equity  jurisprudence  still  exist,  as 
contradistinguished  from  the  principles  governing  actions  at  com- 
mon law,  and  that  a  distinction  is  still  to  be  recognized  between 
legal  and  equitable  modes  of  reliefs  the  more  important  question 
will  arise,  how  are  these  principles  and  this  distinction  to  be 
practically  applied  ?  In  other  words,  is  the  distinction,  under  the 
Code  as  it  now  stands,  and  in  the  light  of  the  later  decisions,  so 
far  as  it  concerns  the  mode  of  proceeding  in  a  civil  action,  of  any 
practical  utility  ?  In  determining  this  question,  it  is  only  neces- 
sary to  consider  it  in  its  results,  and  in  the  practical  application 
which  was  sought  to  be  given  to  it  under  former  decisions.     Thus 

'  9  Barb.  S.  C.  fin?.  4  Lattin  v.  McCnrty,  41  N.  Y.  107. 

"  5  How.  Pr.  273.  ^  SarHfteld  v.  Van  Vaughuer,  lo  Abb. 

»  li  ulens  V.  Joel,  13  N.  Y.  493  ;  Phil-    Go  ;  Bvamaii  v.  Johnson',  2G  How.  38. 
lips  V.  norham,  17  id.  270  ;    VoorJiU  v. 
Chilrh,  17  id.  354;   Gonkt  v.  Asuelcr, 
22  id.  22S,  post,  marg.  p.  67. 


SEC.  III.]      GENERAL  CHANGES  EFFECTED  BY  CODE.  25 

one  of  the  results  which  was  thought  legitimately  to  follow  the 
principle  that  the  code  had  not  abolished  the  inherent  distinc- 
tion between  legal  and  equitable  relief,  was  that  indicated  in 
[*4:5]  the  class  of  cases  just  mentioned,  *  Woodeoi  v.  Wajle,  Le 

Roy  V.  Marshall,  Rochester  City  Bank  v.  Suydam  and 
others,  namely,  that  the  rules  of  pleading  in  equitable  and  legal 
cases  were  not  the  same ;  or,  as  it  is  expressed  in  the  language  of 
the  judge  who  decided  the  case  last  mentioned,  that  "  the  state- 
ment of  the  facts  in  a  complaint  should  be  in  conformity  to  the 
nature  of  the  action.  If  the  case  and  the  relief  sought  be  of  an 
equitable  nature,  then  the  rules  of  chancery  pleading  are  to  be 
applied  to  it ;  otherwise  those  of  the  common  law."  *  This  doc- 
trine, however,  as  I  shall  have  occasion  to  show  more  at  large  in 
the  next  section,  has  not  been  sustained  by  that  class  of  cases 
which  follow  the  decisions  in  Williams  v.  Hayes^  and  Millikin 
V.  Cary^  and  which  have  been  regarded  as  establishing  a  rule 
more  in  concurrence  with  the  letter  and  spirit  of  the  Code. 
Another  result  of  this  principle  was  thought  to  be  that  indicated 
in  Hill  V,  McCarthy*  and  Crary  v.  Goodman,"  namely,  that 
legal  and  equitable  causes  of  action  necessarily  required  different 
modes  of  trial ;  but  this,  it  is  evidciit,  does  not  result  from  any 
inherent  difference  in  the  nature  of  the  two  classes  of  actions,  it 
depending  entirely  upon  the  provisions  of  the  constitution  and 
statutes,  as  will  be  more  fully  shov\  n  hereafter.*  Thus,  for  exam- 
ple, an  action  to  recover  the  possession  of  real  estate  is  to  be  tried 

by  a  jury,  and  an  action  to  compel  a  specific  perform- 
[*4:6]  ance*  of  a  contract  to  convey  real  estate  is  triable  by  the 

court,  not  because  of  any  inherent  difference  between  the 
two  classes  of  cases,  but  because,  by  the  constitution,  the  former 
is  embraced  within  those  issues  for  which  the  trial  by  jury  is  to 
"  remain  inviolate  forever ; "  and  the  latter,  not  coming  within 
this  definition,  is  triable  by  jury  only  if  the  court  so  order ;  the 
court  having  the  power  in  every  case  to  order  the  whole  issue,  or 
any  specific  question  of  fact,  to  be  tried  by  a  jury.^  Another 
consequence  resulting  from  the  distinction  alluded  to,  was  thouglit 

'  See,  also,  Bur  get  v.  Binsell,  5  How.  "»  3  Code  R.  49. 

J02  ;  Floyd  v.  Dcai-born,  3  Code  R.  17 ;  ^9  Barb.  S.  C.  663. 

Carpenter  v.  West,  5  How. 53.  ^  See  post,  eh.  VIII,  §  3. 

2  5  How.  Pr.  470.  '  Code,  ^,  254. 

-  5  How.  Pr.  373. 
4: 


26  ON   PLEADING  IN   GENERAL.  [ClI.  I, 

to  be  as  in  the  case  of  Otis  v.  Slll^'  tliat  the  principles  of  law  and 
equity  could  not  be  administered  in  the  same  action  so  as  to 
allow  a  complaint  to  demand  both  legal  and  equitable  relief;  or, 
as  in  Crary  v.  Goodman,^  that  an  equitable  right  in  a  defendant 
could  not  be  interposed  as  a  defense  to  an  action  to  recover  the 
possession  of  land  ;  or,  as  in  Cochran  v.  Webh,^  that  a  defendant 
could  not,  in  an  action  of  ejectment,  in  his  answer  denying  the 
plaintift"'s  title,  set  up  an  equitable  defense  looking  to  affirmative 
relief;  or,  as  in  ^Yooden  v.  Waffle,*  if  an  equitable  defense  to  a 
purely  legal  action  could  be  set  up,  that  the  answer  could  not  go 
beyond  a  defense,  and  insert  facts  with  a  view  to  affirmative 

relief.  In  regard  to  these  and  similar  decisions,  it  is  suffi- 
[*47]  cient  to   remark  that  they  have  been    swept    away  by* 

express  provisions  introduced  into  the  Code.  Section  167, 
as  amended,  provides  that,  in  the  cases  mentioned  in  that  section, 
"  the  plaintiff  may  unite  in  the  same  complaint  several  causes  of 
action,  ^vhether  they  be  such  as  have  been  heretofore  denominated 
leyal  or  equitable,  or  hoth.^^  Section  150  declares  that  "the 
defendant  may  set  forth  by  answer  as  many  defenses  and  counter- 
claims as  he  may  have,  whether  they  be  such  as  have  been 
heretofore  denominated  legal  or  equitable,  or  botliP  And  section 
274,  as  amended,  declares  that  the  judgment  in  the  action  "  may 
determine  the  ultimate  rights  of  the  parties  on  each  side,  aa 
between  themselves,  and  it  may  grant  to  the  defendant  any 
afflrmative  relief  to  which  lie  may  be  entitled^'' 

However  true,  therefore,  may  be  the  abstract  proposition  tliat 
the  distinction  between  the  principle  upon  which  relief  was 
administered  in  equity,  and  that  by  which  it  was  obtained  in  an 
action  at  common  law  still  exists,  it  is  a  distinction,  which,  for  all 
practical  purposes,  is  barren  of  results  in  its  application  to  the 
ordinary  remedies,  and  course  of  procedure  in  a  civil  action,  no 
matter  what  may  be  the  nature  of  the  relief  sought.  While 
these  principles,  and  the  distinctions  on  which  they  proceed  are 
to  be  carei'ully  studied  and  traced  to  their  sources,  in  oi'dei*  to  a 
thorough  and  accurate  comprehension  of  the  precise  kind  and 

'  8  Barb.  S.  C.   102  ;    Bee,  also.  Co-  *  6  How.  Pr.  145.    This  doctrine  ia 

"hoon  V.  Prendent  of  the  Bank  of  Utica,  also  countenanced  by  the  court  of  ap- 

8  Code  U.  110.  peals  in  the  case  of  Ilaire  v.  Baker, 1 

»  9  Barb.  S.  C.  657.  Seld.  357,  a  case  under  the  Code  of  1848, 

»  4  Sand.  653. 


SEC.  III.]      GENERA.L  CHANGES  EFFECTED  BY  CODE.  ,  27 

measure  of  relief  necessary  for  the  protection  of  the  right  claimed, 
or  for  the  redress  or  prevention  of  the  Avrong  complained  of,  yet 
they  can  be  of  very  little  practical  utility  for  any  purpose  of 
application  to  the  mode  of  remedy  furnished  by  the  civil 
[^■i:S]  action  of  the  Code.  So  far  as  the  *  pleadings  and  pro- 
ceedings in  these  actions  are  concerned,  the  Code  has 
evidently  designed  (and  that  design  is  more  apparent  from  the 
amendments  above  noticed)  to  provide  an  uniform  system,  and 
to  furnish  one  set  of  rules  to  govern  every  class  of  actions,  and 
every  mode  of  relief  known  to  the  law. 

These  views  seem  to  be  directly  sanctioned  by  the  court  of 
appeals  in  the  case  of  Giles  v.  Lyon^  in  which,  alluding  to  the 
section  under  consideration,  and  also  to  the  preamble  to  the  Code,* 
that  court,  per  Gardiner,  J.,  says :  "  The  legislature,  by  the 
section  above  quoted,  sought  to  accomplish  the  object  indicated 
in  the  preamble,  by  abolishing  the  formal  distinction  between  law 
and  equity.  They  were  to  be  blended  and  formed  into  a  single 
system,  which  should  combine  the  principles  peculiar  to  each  and 
be  administered  thereafter,  through  the  same  forms  and  under 
the  same  appellation." 

Similar  views  of  the  question  were  taken  by  Mr.  Justice 
Parker  even  before  the  amendments  to  the  Code  above  referred 
to.  In  Getty  v.  Hudson  River  Railroad  Company,^  on  a 
motion  to  set  aside  an  amended  complaint  because  of  the  union 
of  claims  for  relief  both  legal  and  equitable,  he  says :  "  "We  have 
certainly  made  but  little  progress  in  the  reform  that  has  been 
attempted  if  law  and  equity  can  now  only  be  adminis- 
[*4:9]  tered  in  separate  actions.  If  such  *is  held  to  be  the 
present  rule  of  practice,  the  very  object  of  having  law 
and  equity  administered  in  the  same  tribunal  and  in  the  same 
forms  of  proceedings  will  be  defeated.  It  was  formerly  consid- 
ered a  great  e\al  that  in  a  suit  at  law  the  plaintiff  coiild  be  turned 
out  of  court,  on  the  ground  that  his  relief  was  in  chancery,  and 
that  where  a  bill  was  hied  in  the  court  of  chancery,  it  might  be 

'  4  N  Y.  600.  legal  and  equitable  remedies  should  nc 

^  The  preamble  is  as  follows  :  longer  continue,  and  that  an  uniform 

"  Whereas,  it  is  expedient  that  the  course   of    proceeding,    in    all    case&, 

present  forms  of  actions  and  pleadings  should  be  established." 

in   cases   at  common   law   should  be  '6  How.  Pr.  269,  Special  Term, 
abolished,  that  the  distinction  between 


28  ON"  PLEADIXG  IN^  GENERAL.  [CH.  I. 

dismissed  on  the  ground  that  the  complainant  had  an  ample 
remedy  at  law.  The  evil  is  still  just  as  great  as  it  was  former];/, 
if  a  party  can  have  only  legal  or  equitable  relief  in  the  same 
action.  In  such  case  if  he  commences  his  action  asking  for  equita- 
ble relief,  as,  for  instance,  a  specific  performance,  and  it  turns  out 
that  he  is  not  entitled  to  it,  but  only  to  legal  relief,  by  way  of  dama- 
ges, he  might  perhaps,  if  such  strictness  is  to  govern,  be  put  to  a 
new  action  to  obtain  redress.  This  certainly  ought  not  to  be ; 
and  such  a  strictness  is  hostile  to  the  whole  spirit  of  the  change 
that  has  been  made."  * 

These  views  seem  to  be  entirely  in  accordance  with  those  of 
the  commissioners  of  the  Code,  as  will  aj^pear  by  reference  to 
their  remarks  explanatory  of  the  nature  and  object  of  the  section 
under  discussion.  Their  design  undoubtedly  was  to  abolisli  all 
distinction  between  equitable  and  legal  actions,  not  only  as  to  the 
form  of  pleadings,  but  even  as  to  the  entire  mode  of  proceeding, 
including  the  trial  and  judgment.  In  respect  to  the  pleadings, 
they  sa}' :  "  We  propose  to  reduce  the  system  of  pleading  to  one 
of  allegation  merely,  without  reference  to  discovery,  in  the  mode 
which  will  presently  be  suggested,  so  that  the  same  form 
[*50]  of  allegation  may  be  adapted  to  cases  *  which  have  here- 
tofore been  distinguished  as  legal  and  equitable."  And 
in  abolishing  that  mode  of  pleading  which  enabled  a  party  in 
equity  to  obtain  a  discovery  of  tacts,  or  the  evidence  of  tacts  in 
aid  of  a  prosecution  or  defense,  they  provided  another  way  to 
attain  precisely  the  same  thing.  This  brings  us  to  a  considera- 
tion of  another  branch  of  the  subject. 

Tlie  general  change  eflected  by  the  Code  in  the  pleadings  in 
actions,  which  heretofore  would  have  been  actions  at  law,  consists 
mainly  in  the  abolition  of  forms,  technicalities,  and  iictions.  It 
is  sufficient  if  the  i)lcadings  are  good  in  suhstance,  without  regard 
to  teclmical  omissions  or  defects;  and,  instead  of  those  fictions 
which  the  i-ommon  hiw  permitted,  a  statement  of  the^  facts  con- 
stituting the  cause  of  action  is  now  in  all  cases  required.  Under 
these  restrictions  the  simple  logictd  mode  of  statement  used  by 
the  pleader  in  the  old  common-law  declarations  and  pleas,  with- 
out regard  to  form,  will   be  in  niost  cases  sufficient ;  and  so  the 

'To  the   same   effect  Bee  post,  191,  iiiarg.  p. 


BEC.  III.]     ge:n'eral  changes  effected  ey  code.  29 

rule  is  nr.derstood  and  has  been  held  to  be  under  the  Code.  In 
the  mode  of  pleading  in  that  class  of  cases  which  heretofore  would 
liave  been  of  equitable  cognizance,  a  more  extensive  change  has 
been  effected.  Every  pleading  is  now  merely  a  statement  of 
tVicts.  We  have  already  seen'  what  the  old  chancery  bill  was. 
Besides  the  stating  part  which  set  forth  the  facts  constituting  the 
plaintiff's  cause  of  action  or  ground  of  relief,  the  body  of  the 

bill  usually  contained  also  the  charging  part,  setting  forth 
[*51]  various  *  collateral  facts  and  circumstances  as  pretenses  on 
the  part  of  the  defendant,  and  which  the  defendant  was 
called  upon  to  meet  and  avoid  in  his  answer ;  and  also  the  inter- 
rogating part,  setting  forth  specifically  such  questions  as  he 
desired  the  defendant  specifically  to  answer,  and  that  too  in  every 
variety  of  form  so  as  to  leave  him  no  "  loop  hole  to  escape  upon 
a  negative  pregnant."  All  this  is  done  away  with  by  the  Code. 
The  pleading  can  no  longer  be  used  in  any  form  as  an  examina- 
tion. The  defendant  may  be  called  upon  to  answer  to  the  facts 
constituting  the  plaintiff''s  cause  of  action  set  forth  in  his  com- 
plaint, but  not  to  furnish,  by  his  answer,  evidence  going  to  estab- 
lish those  facts.  If  the  plaintiff'  desire  to  avail  himself  of  sucli 
evidence,  he  can  pursue  the  course  provided  in  the  Code  of  exam- 
ining his  adversary  as  a  witness  before  or  upon  the  trial.  The 
whole  system,  as  the  commissioners  remark,  is  reduced  to  one  of 
allegation  merely.  Indeed  very  little  is  left  of  the  old  chancery 
bill,  which  can  be  useful  or  proper  under  the  new  system,  except 
simply  the  stating  part  which,  as  will  be  hereafter  shown,^  is 
entirely  analogous  to  the  statement  of  the  defendant's  cause 
of  action  in  the  old  common-law  declaration.  The  charging 
part,  the  interrogating  part,  and  the  jurisdiction  clause  are 
alike  swept  away.  This  important  principle  it  will  be  useful 
to  bear  in  mind,  as  it  furnishes  the  key  to  the  whole  the- 
ory of  \iniformity  in  the  pleadings  in  all  civil  actions,  which 

the  Code  has  undertaken  to  introduce.  This  important 
[*52]     idea  is  very  clearly  and  accurately  developed  *by  Mr. 

Justice  Hakris."  The  complaint,  after  setting  forth 
the  allegations  of  the  plaintiff'  which  constituted  his  cause  of 

'  Ante,  marg.  pp.  37,  38.  »  Clarh  v.  Harwood,  8  How.  Pr,  470 

*  See  next  section  of  this  chapter. 


30  ON   PLEADING  IN   GENEKAL.  [CH.  I. 

action,  went  on  to  allege  a  variety  of  pretenses  and  cbarges, 
in  the  usual  form  of  a  bill  in  equity.  The  court,  in  granting 
a  motion  to  strike  out  these  allegations,  remarked :  "  We  have 
in  this  extract  a  very  fair  specimen  of  the  system  of  pretense 
and  charge  which  prevailed  so  extensively  in  chancery  pleading. 
The  replication  being  general,  the  plaintiff  undertook  to  antici- 
pate in  his  bill  the  matters  which  might  be  brought  forward  in 
the  answer  by  way  of  defense.  These  he  set  forth  as  pretenses 
on  the  part  of  the  defendant,  and  as  a  kind  of  replication  m 
advance,  and  to  meet  and  avoid  such  matters,  if  they  should  be 
set  up  in  the  answer,  he  proceeded  to  allege,  in  the  form  of 
charges,  certain  other  matters;  such  charges  the  defendant  was 
required  to  answer,  and  thus  the  plaintiif  obtained  the  benefit  of 
an  examination  of  the  defendant  upon  all  the  matters  embraced 
in  the  charging  part  of  the  bill.  I  need  scarcely  say  that  noth- 
ing of  this  kind  is  allowable  under  the  Code.  Although  it  has 
been  strenuously  contended  that  the  principles  of  equity  pleading 
are  still  i-etained,  yet  certainly,  so  far  as  it  relates  to  pretenses  and 
charges,  they  are  no  longer  allowable.  The  plaintiff  is  to  state 
the  facts  which  constitute  his  cause  of  action  and  nothing  more. 
If  the  defendant  should,  as  the  plaintiff  anticipates,  set  up  by 

way  of  defense,  the  matters  which  he  has  sought  to  con- 
[*53]     trovert  or  avoid,  in  advance,  the  provisions  *  of  the  one 

hundred  and  sixty-eighth  section  of  the  Code,  allow  him  to 
controvert  such  matters  of  defense,  in  any  way  he  can,  without 
any  allegations  for  that  purpose,  in  any  pleading.  Thus  the  sys- 
tem of  pleading,  in  this  respect  at  least,  is  '  simj^lified.''  The 
pleader,  by  whom  this  complaint  was  drawn,  has  lost  sight  of  this 
change  in  the  mode  of  pleading.  He  has  made  what  would  have 
been  a  good  specimen  of  a  bill  in  chancery.  But,  as  a  pleading 
under  the  Code,  his  pretenses  and  charges  are  irrelevant." 

These  important  and  fundamental  changes,  the  abolition  of 
forms  of  action,  the  introduction  of  a  system  of  uniformity  in  all 
pleadings,  whether  of  legal  or  equitable  causes  of  action,  and  the 
reduction  of  that  system  to  one  of  simple  allegation,  without 
reference  to  discovery  or  the  examination  of  the  defendant,  are 
the  biisis  of  the  new  system  introduced  by  the  Code.  The  com- 
missioners,  indeed,   seem   to   have   contemplated   not   only   an 


SEC.  III.]      GENERAL  CHANGES  EFFECTED  BY  CODE.  31 

nnifonnitj  of  pleading,  but  an  uniformity  of  practice  tliroiigliout, 
and  down  to  the  close  of  the  action.  "  It  is  a  leading  feature," 
they  say,  "  of  our  proposed  plan  to  require,  in  all  cases,  a  judg- 
ment adapted  to  the  established  rights  of  the  jparties  j  and  we  can 
see  no  difficulty  in  incorporating  into  it,  as  a  portion  of  an  unU 
form  system  of  practice,  a  form  of  execution  which  shall  adapt 
itself  to  the  judgment."  ' 

It  should  be  remarked,  in  conclusion  of  this  subject,  that  whilo 
tlic  Code  thus  recognizes  an  uniformity  of  pleading  in  all  actions, 
and  permits  legal  and  equitable  claims  and  demands  for 
[*54]  relief  to  be  *united  in  the  same  complaint,  yet  it  has  been 
held,  it  is  thought  upon  sound  principles,  that  inconsistent 
claims  for  relief  cannot  be  so  joined.  Thus,  in  Linden  v.  Hep- 
hum,^  above  cited,  the  decision  is  placed  upon  the  express  ground 
that  the  relief  asked,  namely,  a  forfeiture  of  the  lease  for  breach 
of  conditions,  and  an  injunction  to  restrain  defendant  from  vio- 
lating these  conditions,  is  inconsistent,  and  the  decision  is  placed 
expressly  on  that  ground,  for  it  is  held  in  the  same  case  that, 
although  the  "inherent  difference  between  legal  and  equitable 
relief"  is  not  changed  by  the  Code,  yet  that  the  proper  relief, 
whether  legal  or  equitable,  will  be  administered  in  the  same  form, 
of  action.  "  In  some  cases,"  says  the  court,  "  alternative  relief  may 
be  prayed,  and  relief  be  granted,  in  one  or  the  other  form,  in 
which  cases  an  action  at  law  was  necessary  before  to  attain  the 
one  form,  and  a  bill  in  equity  to  reach  the  other.  A  suit  for 
specific  performance  is  one  of  that  description.  But  we  think 
inconsistent  relief  con.  be  no  more  asked  now  than  it  could  under 
the  old  system." 

The  rule  laid  down  in  Getty  v.  The  Hudson  River  Railroad 
Company,  above  cited,  does  not  differ  in  substance.  The  claims 
for  both  legal  and  equitable  relief  which  may  be  united  in  the 
sameaction  are  only  those  which  are  not  inconsistent.  Indeed,  the 
decision  in  Linden  v.  Hepburn  is  cited  with  approbation  in  the 
opinion  delivered  in  that  case,  and  the  rule  intended  to  be  laid 
down  is  manifestly  the  same. 

The  amendment  to  the  Code,  passed  subsequent  to  these  cases, 

>  See  notes  of  Commissioners  of  tlie        '  3  Sand.  GG8. 
Code. 


32  ox   PLEADIXa  IN   GENERAL.  [CH.  I. 

P55]  wliicli  enables  the  plaintiff  to  "  unite  in  *tlie  same  complaint 
several  causes  of  action,  whether  they  be  such  as  have  been 
heretofore  denominated  legal  or  equitable^  or  loth,  where  they  all 
rise  out  of  the  same  transaction  or  transactions  connected  with  the 
same  subject  of  action,"  etc.,  does  not,  it  is  conceived,  change  this 
rule;  but  while  it  allows  the  party  to  seek  legal  or  equitable 
relief,  or  both,  in  the  same  action,  it  does  not  permit  him  to  seek 
or  allow  the  court  to  give  judgment  for  two  or  more  distinct 
kinds  of  relief  that  are  inconsistent  with,  or  repugnant  to,  each 
other.  Indeed,  this  has  been  expressly  held  since  the  amend- 
ment, in  a  case  at  special  term,*  wherein  the  plaintiff  sought  to 
unite  a  claim  for  the  recovery  of  real  estate,  with  a  claim  for 
damages  for  obstructing  him  in  the  use  of  it  to  a  greater  extent 
than  the  defendant  was  authorized  by  his  lease,  and  for  interfering 
with  the  plaintiff's  right  of  way  over  it.  The  amendment  of  the 
Code  referred  to,  it  was  held,  had  reference  only  to  the  union  of 
such  causes  of  action  as  are  consistent  with  each  other,  not  of 
such  as  arc  contradictory.  There  is  a  discrepancy  in  such  union 
which  is  contrary  to  the  rules  of  good  pleading,  and,  in  the 
opinion  of  the  court,  not  authorized  by  the  Code. 

From  these  various  decisions,  and  the  sections  above  quoted, 
the  following  propositions,  in  respect  to  the  general  changes 
effected  by  the  Code  in  pleading  in  civil  actions,  may  be  laid  down : 

That,  while  the  inherent  difference  between  legal  and  equitable 
relief  remains  unchanged  by  the  Code,  the  remedy  in  both  classes 

of  cases  is  the  same. 
[*56]       *  There  is  no  such  thing  as  an  action  at  law,  as  distin- 
guished from  a  suit  or  proceeding  in  equity.     The  juris- 
diction is  merged  in  the  same  tribunal. 

The  Code  provides  an  uniform  system  of  pleading,  and  but  one 
form  of  action. 

l.egal  and  equitable  relief  may  be  sought  in  the  same  action, 
and  may  be  claimed  in  the  alternative ;  and  the  court  will  grant 
such  judgment  as  the  party  may  show  himself  entitled  to  from 
tlie  tacts  established,  whether  compensatory  in  damages,  or  for 
specific  relief,  or  both. 

But  if  both  species  of  relief  are  claimed,  they  must  not  be 
'  Bmith  V.  Hallock,  8  How.  Pr,  73,  per  S.  B.  Strong,  J. 


SEC.  lY.]        EULES   TO   DETERMIIS^E   SUFFICIEIS'CY.  33 

repugnant  to,  or  inconsistent  with,  each  otlicr,  but  must  be  such 
as  may  be  embraced  in  the  same  judgment,  as  a  claim  for  dama- 
ges for  breach  of  a  contract,  or  an  injury  to  property,  with  a 
chiim  for  a  specific  performance  of  tlie  same  contract,  or  specific 
relief  in  respect  to  the  injurj^  complained  of. 

The  forms  of  action  are  abolished,  but  their  substance  and  the 
principles  which  govern  them  are  preserved. 

As  to  the  manner  of  stating  the  facts  in  a  pleading,  and  whe- 
ther a  different  mode  of  "  allegation  "  is  allowable,  according  to 
the  different  species  of  relief  sought :  That  is,  whether  a  party 
is  to  be  held  to  the  same  strictness  of  statement  in  setting  out  his 
facts  for  specific  relief,  as  for  an  injunction,  a  specific  performance 
and  the  like,  that  he  would  be  on  a  claim  merely  for  compensa- 
tion in  damages,  it  has  already  been  shown  the  plaintiff  may 
now,  as  before  the  Code,  insert  any  allegation  which  may  properly 
bear  upon  the  particular  relief  sought. 


[*57]  *  SECTION  IV. 

OIJ"  THE  RtTLES  TO  DETEBMTNE  THE   STJPFICIENCY  OP  THE  PLEADINGS. 

Under  the  old  system  this  was  one  of  the  most  important 
branches  of  the  subject  of  pleadings.  At  common  law  a  system 
of  rules  was  applicable  to  every  description  of  pleading  in  courts 
of  law,  many  of  them  highly  artificial  and  technical.  The  sub- 
ject, in  all  its  bearings,  formed  one  of  the  most  difficult  and 
abstruse  branches  of  the  study  of  law.  The  books  are  full  of  the 
subtlest  distinctions,  and  the  most  curious  refinements  of  losric,  in 
the  application  of  these  artificial  rules  to  the  science  of  pleading. 
Many  of  them,  indeed,  perhaps  most  of  them,  are  based  upon 
reason  and  sound  sense,  and  have  their  foundation  in  the  very 
nature  of  legal  remedies.  But,  on  the  other  hand,  many  of  them 
are  the  merest  refinement  of  technicality,  dealing  with  fictions 
rather  than  truth,  applicable  to  the  form  and  not  to  the  substance 
of  the  pleading.  Under  the  application  of  these  rules,  the  science 
of  pleading  became  an  abstruse,  artificial  and  formal  science. 
Books  and  treatises  innumerable  were  written  to  explain  and 
illustrate  it,  and,  although  the  legislature,  from  time  to  time, 
5 


34  01^  PLEADING  IN   GENEEAL.  [CH.  I. 

made  several  important  modifications  tending  to  simplify  tlie 
pleadings  in  actions  at  law,  yet,  down  to  the  time  of  tlie  adoption 
of  the  Code,  it  may  be  stated  that  form  and  not  substance  was 

the  distinguishing  feature  of  the  system. 
[*58]  *A  different  system  of  pleadings  grew  up  in  the  courts 

of  equity,  regulated  by  different  principles  and  governed 
by  different  rules,  but,  at  the  same  time,  rules  which,  if  less  subtle 
and  technical,  were  no  less  formal,  precise  and  unbending. 

It  is  the  object  of  this  section  to  ascertain  what  part,  if  any,  of 
these  rules  are  still  remaining,  what  are  their  force  and  effect,  and 
what  their  applicability  to  our  present  system,  and  how,  under 
that  system,  is  the  suflaciency  of  the  pleadings  to  be  determined 
and  ascertained. 

The  commissioners  of  the  Code,  in  their  explanatory  remarks, 
say,  that  the  change  in  the  mode  of  pleading  is  the  key  of  the 
reform  proposed  by  the  Code.  Without  it,  they  should  despair 
of  any  substantial  and  permanent  improvement  in  modes  of  legal 
controversy.* 

Accordingly,  in  the  section  submitted  by  them  and  adopted  by 
the  legislature,  they  abolished  entirely  all  forms  of  pleading,  legal 
and  equitable,  then  existing,  and,  at  one  blow,  overturned  the 
whole  system  of  pleading  as  then  understood  and  practiced  in  the 
courts  of  law  and  equity. 

The  section  is  as  follows  : 

"  All  the  forms  of  pleading  heretofore  existing  are  abolished,  and 
hereafter  the  forms  of  pleading  in  civil  actions,  and  the  rules  by 
which  the  sufficiency  of  the  pleadings  is  to  be  determined,  shall  be 
those  Avhich  are  prescribed  in  this  act.'"' 

In  the  amendments,  made  at  the  next  session  of  the  legislature, 
1849,  this  section  was  modified  as  follows: 

[*59]  *  "  All  the  forms  of  pleading  heretofore  existing,  incooisist' 
cut  ivifh  the  provisions  of  this  act,  are  abolished  ;  and  here- 
after the  forms  of  pleadings  in  civil  actions,  in  courts  of  record,  and 
the  rules  by  which  the  sufficiency  of  the  pleadings  is  to  be  deter- 
mined, are  modified  as  prescribed  by  this  act." 

The  legislature  of  1852  restored  the  section  substantially  as  it 

onginally  stood,  by  striking  out  the  words  above  in  italics,  and 

inserting  the  word  "  those  "  in  place  of  the  words  ''  modified  as.' 

'  First  Report  of  Cora.  p.  137.  »  Code,  §  140. 


SEC.  IV.]        EULES   TO   DETERMINE   SUFFICIENCY.  o5 

Under  this  section  of  the  Code,  as  it  originally  stood,  and  as 
amended,  a  variety  of  decisions  have  been  made,  which  will  be 
briefly  noticed.  In  the  iirst  place,  however,  it  may  be  well  to 
inquire  generally  the  object  and  effect  of  the  amendments  to  the 
section  under  consideration,  made  by  the  legislature,  as  above 
noticed. 

In  the  section  as  originally  passed,  all  forms  of  pleading  were 
abolished,  and  the  rules  by  which  the  sufiiciency  of  the  pleadings 
were  to  be  determined,  were  declared  to  be  those  prescribed  by 
the  Code.  The  design  of  the  amendment  of  the  legislature  of 
1849  seems  to  have  been  to  limit  the  operation  of  this  section ; 
and  instead  of  a  general  annihilation  of  all  forms  and  precedents, 
and  a  repudiation  of  all  former  rules  of  pleading,  to  retain  so 
many  of  those  settled  rules  and  principles  as  did  not  conflict  with 
the  Code.  The  rules  to  test  the  sufliciency  of  pleading  were 
declared  to  be  modified  as  prescribed  by  the  act.  Only  such 
forms  of  pleading  as  were  inconsistent  with  the  ^provisions  of  the 
act  were  declared  abolished.  The  language  of  the  section,  as 
thus  amended,  is  too  plain  for  misconstruction.  It  left  the 
[*'60]  whole  of  the  old  theory  and  science  of  pleading,  *not 
repugnant  to  the  Code,  in  existence,  and  made  the  well- 
settled  rules  and  established  principles  of  pleading  applicable  in 
substance,  without  regard  to  form,  to  the  new  theory  established 
by  the  Code.  But  the  practical  question  which  now  arises  is, 
did  the  legislature,  by  repealing  this  amendment  and  restoring 
the  section  to  where  it  originally  stood,  mean  to  establish  a  con- 
trary rule  ?  In  other  words,  did  it  mean  to  declare  that  no  for^m 
of  jpleading  which  had  heretofore  been  in  use,  should  be  hereafter 
nsed  or  deemed  sufiicient,  and  that  no  rule  of  pleading  should  be 
deemed  applicable  to  the  new  system? 

It  would  seem,  from  a  careful  consideration  of  this  section,  that 
such  could  not  have  been  the  intention  of  the  legislature. 
Indeed,  if  we  descend  to  a  verbal  criticism,  it  may  be  said  that 
the  amendment  of  1849  did  not  essentially  change  the  meaning 
of  the  section  from  what  it  was  before.  The  original  section 
simply  abolished  the  forms  of  pleading,  and  the  amendment 
added  "  inconsistent  with  the  provisions  of  this  act."  Nttw,  tlie 
Code  throughout  clearly  and  manifestly  al)oli.shcs  everything  like 


m  ON   PLEADING  IN   GENERAL.  [CH.  I. 

form  in  pleadings,  independent  of  tlie  section  under  consideration. 
All  mere  "  forms  "  of  pleadings  are  inconsistent  with  the  act,  and 
in  that  sense  there  was  no  necessity  to  limit  it.  Tlie  original 
section  (and  as  it  now  stands)  cannot  certainly  mean  that  if  a 
plaintiff  choose  to  state  his  case  in  the  simple  form  allowed  by 
the  old  system  of  pleadings  in  an  action  for  assault  to  the  person, 

or  trespass  for  carrying  away  goods,  that  for  that  reason 
p61]  alone  the  pleading  is  bad,  and  maybe  demurred  to  *for 

insufficiency.  Indeed,  the  contrary  of  this  has  been  repeat- 
edly held,  both  before  and  since  the  amendments.  Thus,  in 
Hoioard  v.  Tiffany,^  in  the  New  York  superior  court,  Justice 
Sandford  considers  it  sufficient,  in  actions  for  the  recovery  of 
money  or  real  property,  or  the  possession  of  personal  property,  to 
state  the  facts  constituting  the  cause  of  action  substantially  as 
they  were  formerly  stated  in  a  declaration.  So  in  the  case  of 
Houghton  v.  Townsend  and  others,"  which  was  a  decision  at  the 
general  term,  Justice  Marvin  remarks :  "  I  do  not  understand 
that  the  mode  of  stating  t\ie  facts  which  constitute  the  cause  of 
action  has  been  essentially  changed  or  modified  by  the  Code; 
and  I  have  supposed  that  the  old  precedents,  stating  the  facta 
constituting  the  cause  of  action,  might  be,  as  a  general  rule, 
safely  followed,  avoiding  the  mere  conclusions  of  law,  or  state- 
ments of  evidence."  Similar  views  are  expressed  by  Justice 
Selden,  in  his  ably  reasoned  opinion  in  the  case  of  Dows  v.  Hotch- 
hiss*  wherein  he  comes  to  the  conclusion,  that  to  aver  the  legal 
fact  of  indebtedness,  without  an  additional  averment  of  a  promise 
to  pay,  is  sufficient  to  sustain  an  action  upon  an  account ;  and  that 
the  old  common  count  in  debt,  and  not  indebitatus  assumpsit, 
would  be  the  proper  form  of  a  complaint  in  such  an  action  under 
the  Code.  The  question,  as  to  how  far  the  common  counts  in 
assumpsit  may  be  properly  used  in  actions  under  the  Code,  will 

be  considered  more  at  length  hereafter.*  "No  one  will 
[*G2]  deny,"  he  says,  "  that  the  law,  as  it  has  ^heretofore  existed, 

is,  so  far  as  the  Code  is  concerned,  still  in  force,  except 
as  it  has  been  changed  by  its  enactments,  either  expressly  or  by 
necessary  implication." 

'  3  Sand.  695.  »  10  Leg.  Obs.  281 ;  cited  also  in  Voor- 

»  8  How.  Pr.  447.  hies'  Code,  note  to  ^  140. 

*  See  post,  cli.  iv,'§3. 


SEC.  IV.]        EULES   TO   DETERMIN^E   SUFFICIENCY.  37 

It  results,  then,  from  this,  that  the  first  clause  of  the  section, 
as  it  now  stands,  is  nothing  more  than  an  abolition  of  the  forms 
of  pleading,  doing  away  ^vith  the  necessity  of  any  technical  or 
fictitious  statements,  and  leaving  the  party  to  adopt  such  a  mode 
of  allegation  as  may  be  adapted  to  his  cause  of  action,  whether 
that  mode  be  logically  such  as  the  old  system  established  or  not. 

The  same  may  be  remarked  in  respect  to  the  second  clause  of 
the  section.  It  cannot  be  said  that  the  legislature  meant  to  abro- 
gate all  rules  to  test  the  sufiiciency  of  pleadings  except  those 
prescribed  in  the  act.  The  act  itself  does  not  pretend  to  furnish 
rules  to  determine  in  all  cases  what  shall  be  a  suflicient  "  state- 
ment of  the  tacts  constituting  a  cause  of  action  or  defense."  This 
must  still  rest  upon  tliose  well-established  general  rules  and  prin- 
ciples of  pleading  which  existed  at  common  law,  and  are  precisely 
as  applicable  to  the  new  system  of  pleading  under  the  Code  (except 
where  modified  and  abrogated  in  terms),  as  are  the  settled  and 
established  common-law  principles  which  govern  estates  appli- 
cable to  that  subject,  except  where  in  terms  modified  by  the 
Eevised  Statutes.* 

If  any  other  doctrine  than  this  were  established,  it  would 
["'^GS]  lead  to  endless  contradiction  and  confusion.  *  Thus,  for 
example,  it  is  laid  down  as  a  general  rule  of  pleading 
under  the  old  system,  that  it  is  not  necessary  to  allege  what  the 
law  will  presume ;  "^  as  in  an  action  for  slander  imputing  theft,  the 
plaintiff  need  not  aver  that  he  is  not  a  thief,  because  the  law  pre- 
sumes his  innocence  till  the  contrary  be  proved.  It  will  not 
certainly  be  pretended  that  the  Code,  in  abolishing  the  old  rules 
of  pleading,  has  made  it  necessary  in  such  an  action  for  the  plain- 
tiif  to  aver  that  he  is  not  a  thief.  So,  too,  it  was  not  necessary  to 
allege  matters  of  which  the  court,  ex  officio,  takes  notice,  as,  for 
example,  to  set  forth  a  public  statute  ;  nor  to  allege  circumstances 
necessarily  implied,  as,  if  the  plaintiff  plead  that  he  is  heir  to  A, 
to  allege  that  A  is  dead.*  The  abolition  of  forms  of  actions  and 
rules  of  pleading  does  not  affect  these  general  principles  of  the 
common  law,  and,  although  the  Code' prescribes  nothing  in  their 
place,  they  are  manifestly,  from  necessity,  as  applicable  to  plead- 

'  KnoioUs  V.  Gee,  8  Barb.  S.  C.  300  ;        «  Steph.  on  PI.  353. 
Fry  V.  Bennett,  1  C.  R.  N.  S.  249,  250.        «  Steph.  on  PI.  353;  3  Sand.  305. 


38  ON   PLEADIN^G   IX   GEITEKAL.  [CTr.  I. 

ings  now  as  formerly.  The  conclusion  at  which  we  arrive  is,  that 
the  late  amendment  of  this  section  by  the  legislature,  restoring  it 
to  where  it  originally  stood,  has  not  essentially  altered  its  signifi- 
cation from  what  it  was  made  by  the  amendment  of  1819. 

The  adjudged  cases  upon  this  section  of  the  Code  seem  to  be 
entirely  in  accordance  with  this  view  of  the  question.  I  have 
already  alluded  to  some  of  these  cases;  and  two  or  three  others 
may  be  here  properly  noticed.  In  Boyce  v.  Brown^  decided 
[*64:]  at  a  general  term  in  the  fourth  district,  the  pleadings  *were 
under  the  original  Code.  The  court,  in  that  case, 
recognizes  not  only  the  old  definitions  of  pleading,  but  the  pre- 
existing rules,  except  where  abrogated  in  terms  by  thi  Code. 
Justice  Hand,  in  delivering  the  opinion  of  the  court  in  that  case, 
says:  "The  forms  before  in  use  are  not,  in  some  respects,  'legal 
forms,'  particularly  as  to  the  classification  of  actions;  but  the 
manner  of  stating  the  claim  or  defense,  as  required  by  the  Code, 
with  this  exception,  and  that  of  certain  formal  parts  still  remains ; 
and  in  other  respects  I  have  not  been  able  to  discover  that  any 
great  change  has  been  made  in  the  substance  of  pleading.  The 
pleader  may  use  his  own  language,  but  the  necessary  matter  must 
be  there,  and  be  stated  in  an  intelligible  and  issuable  form,  capa- 
ble of  trial.  Facts  must  still  be  set  forth  according  to  their  legal 
efiect  and  operation,  and  not  the  mere  evidence  of  those  facts, 
nor  arguments,  nor  inferences,  nor  matter  of  law  only."  In  the 
same  opinion,  the  court  also  recognizes  the  existence  and  applica- 
bility to  the  present  system  of  those  well-settled  rules,  that  plead- 
ings should  not  be  hypothetical,  nor  argumentative,  nor  in  the 
alternative,  nor  destitute  of  truth  and  certainty. 

In  the  case  of  the  Rochester  City  Bank  v.  Suydam  and  others," 
Justice  Selden  lays  down  the  rule  still  more  definitely,  and  holds 
expressly  that  all  pre- existing  rules  of  pleading,  both  at  law  and 
in  equity,  which  are  not  expressly  abrogated  by  the  Code,  and 
M-liich  can  properly  be  made  applicable  to  the  new  sys- 
[*65]  tern  of  pleadings,  are  still  in  force.'  *This  was  a  case  in 
which  the  plaintitf  claimed,  what  under  the  old  system  would 
liave  been  equitable  relief,  to  wit,  to  reach  certain  securities  in 

'  7  P.arb.  S.  C.  81.  Enoirles  v.  Oee,  8  Barb.  S.  C.  300.    And 

« 5  How.  Pr.  216.  see  McMaster  v.  Booth,  4  How.  Pr.  427. 

*  See,  also, opinion  of  same  justice  in 


SEC.  IV.]        EULES   TO   DETERMINE  SUFFICIENCY.  39 

the  hands  of  the  defendant,  and  to  be  subrogated  to  his  rights  in 
respect  to  them.  In  testing  the  sufficiency  of  the  pleadings  in 
that  case,  the  court  applied  the  rules  which  governed  equity 
pleadings,  and  refused  to  strike  out  certain  statements  alleged  to 
be  redundant,  on  the  ground  that  they  embraced  matter  of  evi- 
dence merely.  This  is,  doubtless,  going  farther  than  the  majority 
of  the  judges  have  yet  gone,  and,  i)ideed,  the  same  learned  jus- 
tice, in  a  later  case,'  seems  to  have  modilied  his  opinion  in  one 
respect,  namely:  That  mere  mattei's  of  evidence  cannot  be 
inserted  even  in  a  complaint  claiming  purely  equitable  relief, 
although  the  rules  to  determine  the  sufficiency  of  the  pleading  in 
these  cases,  in  all  other  respects  not  inconsistent  with  the  express 
provisions  of  the  Code,  were  still  the  old  rules  of  equity  pleading. 
The  true  rule  is  undoubtedly  expressed  by  the  same  justice,  in 
the  more  recent  case  of  Dows  v.  Hotchkiss,  above  alluded  to. 
Reasoning  from  the  proposition  that  the  Code  has  not  attempted 
to  prescribe  what  shall  constitute  a  cause  of  action,  and  therefore 
that  any  facts  which  would  have  sustained  an  action  before  the 
Code  will  do  so  now,  he  lays  down  this  comprehensive,  and  it  is 
thought,   entirely  accurate,  general  principle :    "  To  determine, 

therefore,  whether  a  complaint  contains  sufficient  facts  or 
\^&&]     not,  we  have  to  look  at  the  rules  established  "^  prior  to  the 

Code.  If  it  contains  all  that  was  required  by  those  rules, 
it  is  good ;  if  it  falls  short,  it  is  bad.  The  only  change  in  this 
respect  is  this ;  at  common  law,  averments  were  sometimes 
required  to  sustain  the  action  in  the  particular  form  in  which  it 
was  brought,  which  would  otherwise  have  been  unnecessary. 
Assumpsit,  for  instance,  would  not  lie  without  the  averment  of 
an  undertaking  or  promise,  although  all  the  facts,  necessary  to 
show  the  existence  of  the  debt,  were  set  forth.  The  Code  has 
changed  this,  so  that  now  a  complaint  is  good  if  it  contain  facts 
sufficient  to  have  sustained  an  action  before  in  any  form.  The 
application  of  the  principle  to  the  particular  case  under  discussion 
was  this ;  that  an  implied  promise^  in  an  action  on  an  account 
under  the  Code,  was  neither  a  necessary  nor  a  proper  allegation. 
It  was,  under  the  old  system,  a  pure  fiction  —  a  mere  implication 
of  law  —  not  necessary  to  be  proved,  and  only  necessary  to  deter- 

'  Wooden  v.  Waffle,  6  How.  1 16,  Monroe  Special  Term,  Oct.,  1851. 


40  ON   PLEADING  IN   GENERAL.  [CH.  1. 

mine  the  form  of  the  action.  A  simple  allegation  of  the  fact  of 
indebtedness,  as  set  forth  in  the  old  common  count  in  debt,  m^  ould 
ha^e  been  sufficient.'  To  the  same  efi'ect  is  the  language  of  the 
New  York  superior  court,  bj  Doer,  J.,  in  Fry  v.  Bennett ;" 
"  The  rules  for  determining  the  suflSciencj  of  pleadings  to  which 
the  Code  refers,  and  which,  except  as  modified,  it  has  been  fre- 
quently and  very  properly  decided  that  it  retains,  are 
[*67]  manifestly  rules  of  pleading,  and  not  of  law."  And  *again : 
"  The  Code,  in  abolishing  a  division  of  actions  that  was  in 
a  measure  merely  arbitrary,  and  all  forms  of  pleading  inconsistent 
with  its  own  provisions,  has  been  careful  not  to  abolish  those 
rules  of  a  sound  logic,  by  which  the  sufliciency  of  pleadings  is  to 
be  determined.  Kules  which  were  purely  technical,  and  had  a 
reference  solely  to  the  particular  form  of  the  action  in  which  they 
were  applied,  are,  doubtless,  abolished ;  but  those  which,  having 
their  foundation  in  reason  and  good  sense,  are  an  important  aid 
in  the  investigation  of  truth,  and  manifestly  tend  to  the  further- 
ance of  justice,  retain  all  their  original  force  and  authority." 

The  conclusion  at  which  we  arrive  on  this  point  cannot  be  more 
clearly  or  better  expressed  than  in  the  language  of  Justice  Har- 
Kis :'  "  The  principles  of  pleadings,  whatever  the  system,  are 
always  tlie  same.  Its  office  is  to  present  the  cause  of  action  on 
one  side  and  a  defense  on  the  other.  This  is  not  less  true  under 
our  present  system  than  under  the  former.  Names  are  changed, 
useless  forms  and  technical  rules  are  abolished,  but  the  j^rinciples 
remain  unchanged.* 

Are  the  same  rules  apiMcahle  in  jpleadirtg  a  cause  of  action  or 
defense,  which  is  jpurely  legal,  and  one  which  heretofore  would 
have  been  classed  as  equitalle  ?  [It  is  now  settled  that  the  system 
of  pleading  is  uniform,  in  cases  of  a  legal  and  of  an  equitable 
character,  although,  of  course,  the  substance  of  a  pleading  in  each 
class  of  actions  was  not  affected  by  the  Code  ;*  and  this,  notwith- 
standing the  judgments  cannot  be  assimilated.'] 

'  See  this  suhject  further  considered        ^  N.  Y.  Ice  Co.  v.  N.  W.  Ins.  Co.,  23 

under  the  head  of  "  Common  Counts,"  N.  Y.  359;  PliilHps  v.  Oorhnm,  17  id. 

post,  i-h.  iv,  i<  2.  272  ;  Cole  v.  Rrynolds,  18  id.  76  :  Laitin 

«  ')  Sandf.  54  ;  1  C.  R.  N.  S.  249.  v.  McCarty,  4l'id.  109 ;  ante,  nuu-y.  p. 

*  Buddington  v.  Dams,  6  How.  Pr.  44. 

402.  6  Butler  v.  Lee,  33  How.  251  1 

*  And  see  post,  ch.  viii,  g  5. 


SEC.  IV.]        RULES   TO   DETERMHSTE   SUFFICIEN-CY.  41 

This  question  has  assumed  some  importance,  from  its  frequent 
discussion,  and  also  from  an  apparent  conflict  of  decisions  in  re- 
spect to  it.  Mr.  Justice  Seldex,  in  the  cases  above  cited, 
[*68]  holds  the  negative  *of  the  question.'  The  views  ex- 
pressed by  him  in  these  cases  seem,  in  the  main,  to  accord 
with  the  principle  recognized  in  the  cases  (referred  to  in  the  pre- 
ceding section)  of  Linden  v.  Hepburn^  and  Howard  v.  Tiffany* 
in  the  superior  court  of  New  York,  particularly  the  latter  case. 
A  similar  doctrine  seems  to  be  countenanced  in  a  decision  of  the 
supreme  court  of  the  first  district,  at  general  term,  in  the  case  of 
Coit  V.  Coit!'  MrrcHELL,  Justice,  in  that  case,  says :  "  The  Code 
expressly  declares  that  it  is  expedient  that  the  present  forms  of 
action  and  pleadings  in  cases  at  common  law  should  be  abolished, 
but  uses  no  such  language  as  to  forms  of  action  and  pleadings  in 
equity  (see  recital  at  beginning  of  Code).  [But  it  does  say, 
also,  that  it  is  expedient  that  the  distinction  between  legal  and 
equitable  remedies  should  no  longer  continue,  and  that  an  uniform 
course  of  proceedings  in  all  cases  should  be  established.]  Section 
140  only  abolishes  the  forms  of  pleading  heretofore  existing,  so  far 
as  they  are  inconsistent  with  the  Code,  and  modifies  the  forms  of 
pleading  as  prescribed  by  that  act.  So  far,  therefore,  as  the  equity 
form  of  pleading  is  not  inconsistent  with  the  Code,  it  does  not 
seem  to  be  repealed.  Section  469  abrogates  the  former  rules  and 
practice  of  the  courts,  so  far  as  they  are  inconsistent  w^ith  that 
act,  but  expressly  provides  that  where  they  are  consistent  with 
the  act,  they  shall  continue  in  force,  subject  to  the  power  of  the 
courts  to  relax,  modify  or  alter  the  sameP  Mr.  Justice  Baeculo, 
in  Le  Roy  v.  Marshall  and  others^  strenuously  contends 
[^'69]  for  the  same  rule,  basing  it  *  upon  the  essential  difference 
between  the  origin,  nature  and  object  of  legal  and  equi- 
table proceedings,  and  the  impossibility  of  administering  law  and 
equity  in  precisely  the  same  forms.  Ilis  very  ingenious  argu- 
ment coincides,  in  the  main,  with  the  views  of  Mr.  Justice  Sel- 
DEN,  in  Rochester  City  Bank  v.  Suydam,  his  conclusion  being 
that  the  attempt  of  the  Code  to  blend  the  forms  of  legal  and 
equitable  pleading  into  one  system,  and  to  test  the  same  by  one 

'  See  ante,  pp.  58,  59.  ^  6  How.  Pr.  53. 

■  3  Saudf.  668.  ^  8  How.  Pr.  373 

» 'i  id.  693. 
0 


42  ON   PLEADING  IN"   GENERAL.  [CII.  I. 

gel  of  rules,  is  an  attempt  which  cannot,  in  the  nature  of  things, 
be  carried  out  in  practice,  for,  he  remarks,  "nature  has  made 
some  laws,  and  these  it  is  difficult  to  repeal."  If  these  positions 
are  henceforth  to  become  the  settled  practice  of  our  courts,  we 
arrive  at  the  conclusion  that  the  Code  has  failed  in  accomplishing 
what  it  has  professed,  and  that  we  still  have,  if  not  two  different 
systems  of  pleading,  at  least  two  different  sets  of  rules  to  deter- 
mine the  sufficiency  of  pleadings  in  different  actions.  It  becomes 
necessary,  then,  to  examine  this  subject  somewhat  in  detail. 

It  seems  to  be  entirely  settled  and  assented  to  on  all  hands,  as 
is  truly  remarked  by  Justice  Selden  in  Wooden  v.  Waffle,  that  in 
a  purely  legal  action  under  the  Code  —  [that  is,  an  action  claiming 
compensation  in  damages,  or  to  recover  specific,  real  or  personal 
property]  —  the  common-law  rule  which  confined  the  allegations 
of  fact  in  every  pleading  to  such  as  were  essential  to  the  cause  of 
action  or  defense,  and  which,  if  put  in  issue,  would  be  decisive 
of  the  suit,  is  still  in  force,  and  whatever  is  inserted  beyond  these 

essential  facts  in  such  an  action  will  be  stricken  out  on 
[*T0]     motion.     This  proposition  is  more  *  fully  developed  by 

the  same  justice  in  Doios  v.  JIotcAkiss,  and  is,  I  believe, 
fully  sustained  by  all  the  decisions.  It  seems  to  be  also  settled 
that  even  in  a  pleading  for  specific  relief — or  what  formerly 
Would  have  been  called  an  equity  pleading  —  the  old  equity  rule 
tliat  the  pleader  might  insert  matters  of  evidence,  or  any  collat- 
eral matter,  the  admission  of  which  might  be  material  in  estab- 
lishing the  allegations  in  a  pleading,  is  now  abolished.  In  other 
words,  that  a  pleading  under  the  Code  cannot  be  used  for  the 
pui'pose  of  examining:  the  opposite  party ;  and  whenever  any 
such  collateral  matters  are  introduced  for  that  purpose,  or  other 
matters  of  evidence  merely,  they  will  be  struck  out  on  motion.' 
What,  then,  is  the  point  of  difierence  which  still  remains  ?  It  is 
whether  the  same  strictness  of  allegation  in  stating  "facts"  is 
required  in  an  action  for  equitable  as  for  pureh^  legal  relief? 
Whether  the  same  rules  govern  the  two  modes  of  pleading,  and 
whether  nothing  can  be  properly  inserted  in  the  one  which  can- 
not stand  the  uniform  and  infallible  test  of  the  other? 

Perhaps  the  discussion  of  the  question  is  not  a  profitable  one, 

'  See  ante,  marg.  pp.  50,  51,  and  cases  tliere  cited. 


BEC.  IV.}       "RULES   TO   DETEPvAfTlSrE  SUFFICIENCY.  43 

and  can  lead  to  no  practical  results.  Indeed,  the  distinction 
between  the  two  classes  of  cases  cited  may  be  found,  after  all,  to 
lie  in  words  rather  than  in  things  —  in.  form,  and  not  in  substance. 
The  difficulty  seems  to  me  to  have  arisen  from  a  failure  to  dis- 
criminate between  the  different  oflSces  performed  by  an  ordinary 
bill  in  chancery,  that  is  to  say,  its  double  object,  first,  as  a,  pleading 
governed  in  all  respects  by  the  principles  which  regu- 
[*71]  lated  the  *  mode  of  stating  a  declaration  in  an  action  at 
law,  and  secondly,  as  an  examination  regulated  exclusively 
by  rules  of  equity  practice  unknown  to  the  common-law  system. 
The  latter  of  them,  as  has  been  remarked  on  a  former  page,  is 
abolished,  and  the  former  retained  by  the  Code.  Now,  if  it  be 
true  that  the  part  of  a  chancery  bill  which  filled  the  office  of  a 
pleading,  i.  e.,  the  stating  part  (and  which  the  Code  retains)  was 
always,  even  under  the  old  system,  governed,  in  the  manner  of 
its  statement,  by  those  logical  rules  and  principles  which  equally 
governed  the  pleadings  in  an  action  of  ejectment,  or  an  action  on 
the  case  at  common  law,  then  the  whole  difficulty  has  found  a 
solution,  the  discordant  decisions  are  reconciled,  and  the  conclu- 
sion is  at  once  reached,  that  the  Code  has  done  precisely  what  it 
professes  to  do  in  the  establishment  of  an  uniform  system  of 
pleadings,  and  one  set  of  rules  to  determine  the  sufficiency  of  the 
same.  In  order  to  bring  this  matter  to  the  test,  let  us  again 
carefully  examine  the  structure  and  object  of  the  chancery  bill, 
especially  under  the  rules  recognized  in  our  own  courts  of  equity 
immediately  prior  to  the  Code. 

' '  It  must  be  recollected,"  says  the  chancellor,  in  Hawley  and 
others  V.  Wolverton^  "  that  the  bill  in  chancery  is  not  only  a 
pleading.^  for  the  purpose  of  bringing  before  the  court  and 
fitting  in  issue  the  rnaterial  allegations  and  charges  upon  which 
the  complainant'' s  right  to  relief  rests,  as  in  a  declaration  in  a  suit 
at  law,  but  it  is  also,  in  most  cases,  an  examination  of  the 
[*72]  defendant  upon  oath,  for  the  purpose  of  obtaining  *  evi- 
dence to  establish  the  complainant's  ease,  or  to  counter- 
prove  or  destroy  the  defense,  which  may  be  set  up  by  such  defend- 
ant in  his  answer.  The  complainant  may  therefore  state  any 
matter  of  evidence  in  the  bill,  or  any  collateral  fact,  the  admifr 

15  Paige,  523. 


44  O:^  PLEADING  IX   aENERAL.  [CH.  I. 

sion  of  wliicli,  by  the  defendant,  may  be  material  in  establisLing 
the  general  allegations  of  the  bill  as  a  pleading,  or  in  ascertain- 
ing and  determining  the  nature  and  extent,  or  the  kind  of  relief 
to  whicli  the  complainant  may  be  entitled  consistently  with  the 
case  made  by  the  bill."  The  same  views,  which  indeed  may  be 
regarded  as  elementary  and  fundamental  principles  of  equity 
pleading  under  the  old  system,  are  again  very  clearly  stated  by 
the  chancellor  in  The  Meclianici  Bank  v.  Levy}  "  In  framing 
au  ordinary  bill  in  chancery,  the  pleader  has  a  two-fold  object, 
discovery  and  relief.  The  allegations  in  the  bill  so  far  as  the 
question  of  the  complainant's  right  to  relief  is  concerned,  are  sub- 
stantially in  the  same  form  as  the  averments  in  a  declaration  at 
law.  And  the  pleader  must  state  his  client's  cause  of  action  in 
such  a  manner  that  the  main  facts  upon  which  his  right  to  relief 
depends  may  he  put  in  issue  and  tried}''  So  much  in  respect  to 
the  question  of  relief ',  the  bill  should  contain  allegations  of  fact 
entitling  the  party  to  it  substantially  in  the  same  form  as  aver- 
ments in  an  action  at  law.  They  must  be  such  facts  as  could  be 
fut  in  issue  and  tried.  And  further,  they  must  be  allegations  of 
fact,  stated  with  as  much  brevity  and  precision  as  possible, 
[*73]  not  of  inference  or  *argument.*  But  the  complainant 
was  also  entitled  to  a  discovery,  and  accordiugl}',  under  the 
old  equity  system,  he  might,  to  quote  from  the  same  opinion, 
"  state  any  matters  of  evidence  in  his  bill  which  may  be  material 
in  establishing  the  main  charge,  or  in  ascertaining  the  nature  or 
kind  of  relief  proper  to  be  administered,  and  may  interrogate  the 
defendant  as  to  these  matters.'' 

The  discovery  is  now  abolished  by  the  Code.  The  pleading 
can  no  longer  be  used  as  a  method  of  examination,  or  to  obtain 
evidence  in  aid  of  the  relief  sought.  ]S[othing  is  left  of  the  old 
equity  mode  of  pleadings  but  the  simple  allegations  of  facts 
material  to  the  relief  sought,  and  which  go  to  establish  the  plain- 
tiff's case. 

Apply  this  rule  to  pleadings  under  the  Code,  and  it  will  recon- 
cile the  differences  of  opinion  that  have  existed  in  respect  to 
pleadings  in  cases  of  legal  and  of  equitable  relief.  It  will  estab- 
lish an  uniform  system,  and   one  set  of  rules  for  all  cases  of 

•  3  Paige,  606.  ^  g  How.  Pr.  471. 


SEC.  IV.]        KITLES   TO   DETERMINE   SUFFICIENCY.  45 

pleading.  Instead  of  the  test  that  the  allegation  can  be  made  the 
subject  of  a  "  material,"  or,  as  it  is  elsewhere  said,  a  "  decisive 
issne,"  apply  the  equity  rule  of  pleading,  that  the  pleader 
must  stale  such  facts,  and  such  only,  as  are  material  to  the  par- 
ticular relief  he  claims,  and  as  may  be  properly  '' jput  in  issue 
and  tried:'  These  tacts,  of  course,  will  vary  with  the  nature  of 
the  cause  of  action.  The  statement  of  the  case  in  an  action  for 
the  partition  of  land,  or  for  the  foreclosure  of  a  mortgage,  must, 
of  necessity,  be  as  different  from  that  of  an  action  for  a 
[*74]  trespass,  or  on  *a  simple  contract,  as  the  judgment  in  the 
one  is  different  from  the  judgment  in  the  other.  The 
prayer  for  relief  is  different,  and  the  very  nature  of  such  relief  is 
dissimilar ;  and  yet  the  Code  provides  one  form  of  judgment  in 
all  cases  "  wdiich  shall  specify  clearly  the  relief  granted,  or  other 
determination  of  the  action,"  and  an  uniform  mode  of  enforcing 
such  judgment  by  its  appropriate  kind  of  execution.  I  am, 
therefore,  unable  to  perceive  any  thing  in  the  Code  which  author- 
izes or  warrants  the  application  of  different  rules  in  determining 
the  sufficiency  of  the  pleadings  in  different  actions. 

These  views  seem  to  me  to  be  sanctioned  in  a  variety  of  decis- 
ions that  have  been  made  under  the  Code.  Thus,  in  WiUia?n8 
V.  Ilaijes^  Justice  Harris,  in  sustaining  the  theory  of  an  uni- 
formity of  pleadings,  lays  down  very  clearly,  and,  as  we  think, 
very  correctly,  the  doctrine  that  under  the  Code  "  neither  the 
rules  by  which  the  sufficiency  or  insufficiency  of  pleadings  in  the 
common-law^  courts,  nor  those  which  were  applicable  to  pleadings 
in  courts  of  equitable  jurisdiction,  can  be  adopted  as  a  sure 
oTiide."  By  this  we  do  not  understand  him  to  mean  tliat  the 
established  principles  of  pleading  at  common  law,  so  far  as  the 
substance  of  the  issue  was  concerned,  without  regard  to  form, 
were  to  be  disregarded,  or  that  those  general  rules  which  tested 
the  sufficiency  of  the  pleadings,  both  at  law  and  in  equity, 
were  of  no  farther  utility  under  the  new  system.  All  that 
we  understand  by  this  is,  that  one  class  of  rules  is 
[*75]  not  to  be  used  as  an  infallible  guide  in  *  determining 
the  sufficiency  of  the  pleadings  in  one  species  of  action, 
and    another    class    in    another.     The    Code  abolishes    tlie   dis- 

»  5  How.  Pr.  471. 


46  01^  PLEADING*  IN   GENEEAL.  [CH.  I. 

tinction  between  legal  and  equitable  remedies,  and  provides 
an  unilbrmitj  of  pleading  as  well  as  of  proceeding,  in  all  cases. 
Or,  as  he  very  intelligibly  expresses  it  elsewhere  in  the  same 
opinion  :  "  It  was  not  the  intention  of  the  legislature,  in  adopting 
the  Code,  to  continue  the  distinction  l^etween  common-law  and 
equity  pleadings.  On  the  contrary,  it  was  intended  that  there 
should  be  but  one  system  of  pleadings.  It  was  not  intended  that 
ihe  rules  of  common-law  pleadings  should  be  applicable  to  one 
class  of  cases,  and  those  of  chancery  to  another.  On  the  contrary, 
it  was  intended,  that  neither  the  rules  of  common-law  pleading, 
nor  those  of  equity  pleading,  should  be  exclusively  applicable  to  any 
case  of  pleading  under  the  Code.  In  every  case  the  criterion  to 
judge  of  the  sufficiency  or  insufficiency  of  the  pleading  is  the  same." 
This  "criterion"  is  defined  by  the  same  learned  judge  to  be 
"  whether  the  allegation  can  be  made  the  subject  of  a  inaterial 
issued''  Perhaps  such  a  criterion  may  be  the  proper  one  in  both 
classes  of  cases  if  the  words  inaterial  issue  are  to  be  understood, ' 
not  as  a  single  issue  decisive  of  the  toliole  case,  but  as  an  issue 
material  to  the  relief  sought  to  he  estahUshed  in  the  action.  For 
example,  in  an  action  for  damages  for  a  trespass,  the  issue  was 
narrowed  down  to  a  single  material  point,  which,  if  admitted  or 
proved,  was  decisive  of  the  whole  action.  In  a  suit  for  a  specific 
performance,  or  for  an  injunction,  the  particular  relief 
[*76]  demanded  might  rest  upon  a  variety  *of  facts  and  circum- 
stances, one  of  which,  if  denied  or  disproved,  was  not 
entirely  decisive  against  the  party  claiming;  and  yet,  such  a  fact 
might  be,  or  might  become  in  the  failure  of  proof  of  other  allega- 
tions, a  material  fact  to  entitle  the  party  to  the  particular  relief 
sought,  and  therefore  properly  set  forth  in  the  pleading.  While, 
therefore,  it  may  not  be  too  much  to  say,  that,  although  the  Code 
provides  for  and  requires  an  entire  uniformity  in  the  mode  of 
pleading,  as  well  as  of  proceeding  in  all  cases,  and  while  the  same 
general  rules  may  bo  applied  to  test  the  sufficiency  of  pleading, 
yet  that  the  statement  of  facts  in  a  pleading  is  to  be  made  in 
accordance  with  tlie  particular  kind  of  relief  demanded.  This 
was  manifestly  the  intention  of  the  framers  of  the  Code.  They 
propose,  they  say,'  "  to  reduce  the  system  of  pleading  to  one  ot 

'  Firat  Rep.  of  Comrs.  75. 


SEC,  IV.]        EULES   TO   DETEEMINE   SUFFICIENCY.  47 

allegation  merely,  without  reference  to  discovery,  so  that  tlie 
Baxneform  of  allegation  may  he  adapted  to  cases  which  have  here- 
tofore heen  distinguished  as  legal  and  eguitahleP 

"What  was  said  by  the  court  in  Minor  v.  Terry ^  is  also  strongly 
corroborative  of  the  tlieory  that  an  uniformity  of  pleading  in  all 
cases  is  not  only  practicable,  but  has  been  actually  established 
by  the  Code.  After  remarking  that  what  the  Code  intended  to 
abolish  was  merely  the  action  for  discovei^  in  aid  of  the  prosecu- 
tion of  another  action,  the  court  says :  "  It  should  not  be  forgot- 
ten that  a  complaint  in  equity,  in  some  of  its  important  aspects, 

bears  a  close  analogy  to  a  declaration  in  the  old  action 
[""77]  on  the  case.     In  that  action  the  plaintiff  was  *accnstomed 

to  set  out  the  facts  of  his  case,  entitling  him  to  relief,  par- 
ticularly, and  at  large,  as  may  be  seen  by  consulting  the  prece- 
dents in  Chitty's  Pleading  in  actions  on  the  case  for  torts  to  the 
person,  to  personal  property,  and  to  real  property.  It  may  be  suf- 
ficient to  refer  to  the  declarations  in  actions  of  slander  and  libel 
where  special  damages  are  claimed.  The  pleader  cannot  content 
himself  by  stating  the  legal  conclusion  that  the  defendant  uttered 
actionable  words  against  him  whereby  he  sustained  damages. 
But  he  must  set  out  the  particxdar  words  and  in  many  cases  the 
particular  circumstances  under  which  they  were  uttered ;  and 
when  special  damage  is  claimed,  the  jy«rfo'c?^?«'7'  loay  and  manner 
hy  which  the  loss  or  damage  occurred.  Under  the  present  system, 
since  the  forms  of  action  are  abolished,  every  action  is  one  upon 
the  case  I  that  is,  founded  on  the  particular  facts  of  the  case  set 
forth  in  the  complaint.  So,  in  a  complaint  in  equity,  in  most 
cases  where  an  injunction  is  prayed  for,  it  is  competent  to  set 
out  the  facts  which  constitute  the  foundation  of  the  right  vdth. 
particularity  and  minuteness."  The  reasoning  of  Mr.  Justice 
Gridley  in  the  foregoing  opinion  and  his  proposition  that  "  every 
action  is  now  an  action  on  the  case,"  is  approved  by  the  sub- 
sequent case  of  Field  v.  Stone.''  In  every  pleading  the  plaintiff 
is  required  to  set  forth  the  particular  facts  which  constitute  his 
cause  of  action.     By  the  facts  thus  alleged  he  must  stand  or  fall. 

If  in  the  judgment  of  the  court  they  constitute  a  valid  cause 
["7b]  of  action,  and  are  established  by  proof  or  otherwise,*  the 

» 6  How.  Pr.  208,  per  Gridley,  J.  *  7  How.  Pr.  12. 


48  OjS-  pleadiinG  in  gexekal.  [ch.  I. 

plaintiff  recovers  the  judgment  appropriate  to  the  facts.     The 
judgment  is  secundum  allegata  et  probata.      Substantially  the 
same  views   were  advanced  by  Mr.  Justice  Sill,   at  an  earlier 
period,  in   the  case  of  MilUkin  v.    Carey.'      It  was  an   action 
to  set  aside  an  assignment  made  to  hinder  and  defraud  credit- 
ors.    The  complaint,   which   was  similar   to  a  former  chancery 
bill,  contained,   in   addition  to  the  allegation  of  facts,  a   detail 
of  circumstances,    confessions   of    defendant,    etc.,    constituting 
evidence  to  establish  charges  of  fraud  and  insolvency  of  assignee. 
This  complaint  was  held  to  be  bad,  and  the  court  remarked,  allud- 
ing to  section  69  of  the  Code :  "  To  allow  a  mode  of  pleading  in 
suits  of  equitable  cognizance,  different  from  that  required  in  suits 
at  law,  would  frustrate  the  obvious  design  of  this  legislation.     It 
would  be  in  conflict  wdth  its  plain  provisions  and  perpetuate,  at 
least  in  part,  the  very  mischief  at  which  it  was  especially  aimed. 
The  intention  of  the   legislature    manifestly  was  to  permit    a 
party  to  state  the  facts  of  his  case,  in  his  complaint,  as  they  may 
exist,  without  imposing  upon  him  the  responsibihty  of  determin- 
ino-  in  advance,  whether  relief  should  be  administered  to  him  accord- 
ing  to  the  rules  of  legal  or  equitable  jurisprudence.    The  court  pro- 
nounced such  judgment  as  the  facts,  which  are  stated  and  proved, 
require,  whether  it  be  legal  or  equitable.     K  the  different  modes 
of  pleading  remain,  as  is  contended,  it  is  now  as  important  as  ever 
to  determine  beforehand  to  which  class  tL     action  belongs,  and  a 
mistake  on  this  point  must  produce  the  same  mischief  which 
[*79]  the  framers  of  the  constitution,  and  the  legislature,  *liave 
tried  to  prevent.     Except  to  obtain  a  discovery,  no  neces- 
sity ever  existed  for  detailing  the  evidence  even  in  a  bill  in  chan- 
cery.    It  was  useful  only  to  enable  a  complainant  to  examine  his 
adversary  as  a  witness.     When  this  was  not  required  it  was  only 
necessary,  as  now,  to  state  the  facts.     A  detail  of  the  evidence 
did  not  aid  the  prosecution,  nor  did  its  omission  limit  the  scope 
of  the  testimony  or  affect  the  remedy.     The  examination  of  a 
defendant  by  bill  of  discovery  is  now  done  away,  and  with  it  all 
occasion  for  resorting  to  the  peculiar  mode  of  pleading  to  which 
it  gave  rise.     The  granting  of  judicial  relief  must  always  be  pre- 
ceded by  an  ascertainment  of  the  facts  upon  which  the  right  to  it 

'5How.Pr.272. 


SEC.  IV.]        RULES   TO   DETERMINE   SUFFICIElSrCY.  49 

depends.  It  is  the  office  of  pleadings  to  present  the  facts,  as  they 
are  claimed  by  the  parties  respectively  to  exist,  and  I  have  not 
been  able  to  conceive  why  the  facts  should  be  accompanied  by  a 
statement  of  the  evidence  where  equitable  relief  is  demanded,  and 
such  statement  be  omitted  when  the  application  is  for  a  judgment 
at  law.  There  seems  to  be  no  authority  in  law  or  reason  for  con- 
tinning,  in  this  State,  a  distinction  between  the  pleadings  in 
actions  at  law,  and  those  in  suits  in  equity." 

I  deem  it  unnecessary  to  dwell  longer  upon  this  subject  or  to 
cite  further  cases  in  supporting  these  views.'  The  general  prin- 
ciples established  by  them,  namely,  that  every  action  is  now  an 
action  on  the  case ;  that  there  never  was,  in  reality,  any 
[*80]  essential  difference  in  the  mode  of  stating  an  action  on  *the 
case  at  law,  and  the  facts  going  to  establish  a  right  to 
relief  in  equity ;  that  facts  only  are  to  be  stated  which  can  be 
"  put  in  issue  and  tried,"  either  by  the  jury  or  by  the  court ;  and 
that  so  much  of  the  chancery  system  of  pleading  as  related  to 
discovery  merely,  and  the  examination  of  the  opposite  party,  has 
no  place  in  the  system  devised  by  the  Code,'  sustains,  in  my 
judgment,  tlie  theory  of  a  perfect  uniformity  of  pleading,  in 
every  kind  of  action,  and  in  the  rules  to  determine  the  sufficiency 
thereof. 

[It  is  admitted  in  Wooden  v.  Waffle'  a  case  which  is  cited 
to  sustain  the  contrary  doctrine,  that  even  an  equity  plead- 
ing can  no  longer  be  made  use  of  for  the  purpose  of  examining 
the  opposite  party,  and  that  whatever  is  introduced  with  that 
view  alone  must  be  stricken  out.  In  that  case.  Justice  Selden 
ordered  the  whole  answer  to  be  struck  out ;  an  answer,  however, 
which,  it  will  be  seen  at  a  glance,  would  not  have  been  good  even 
under  the  old  chancery  system,  within  the  rule  laid  down  by  the 
chancellor,  in  Hood  v.  Jnmmi.^'\ 

Nor  do  I  see  any  difficulty  in  the  application  of  these  principles 
to  those  very  cases  in  which  a  contrary  doctrine  has  been  inti- 
mated. Thus,  in  Howard  v.  Tif'anij,*  in  an  action  praying  for  a 
preliminary  and  pei-petual  injunction  in  respect  to  the  use  of 

'  The  following  cases  are  to  the  same        *  6  How.  146. 
purpose :    Getf/i/  v.  Hudson  River  B.  R.        *  4  Johns.  Ch.  437. 
Co.,  6  How.  2()9  ;  Field  v.  Stone,  7  id.        *  3  Sand.  695. 
12:  Clark  v.  Harwood,  8  id.  470:  also, 
Gould  and  others  v.  Williams,  9  id.  51. 

7 


50  ON"   PLEADIl^G  IIS"   GENERAL.  [CH.  I. 

demised  premises  contrary  to  the  covenants  and  conditions  of  a 
lease,  the  court  refused  to  strike  out  certain  allegations  of  fact 
upon  which,  in  the  aggregate,  the  plaintiif  rested  his  right  to  the 
particular  relief  demanded.  In  that  case,  it  was  very  properly 
said  in  regard  to  such  actions,  that  "  the  facts  constituting  the 
cause  of  action  spoken  of  in  the  Code,  are  not  merely  the  facts 
upon  which  the  plaintiff's  right  to  ash  relief  \q  founded,  but  those 

words  include  all  such  facts  as  are  necessary  to  found  the 
[*81]  particular  ^relief  demanded,  and  to  enable  the  court  to 

give  the  proper  judgment  in  the  action."  A  perpetual 
injunction  was  the  particular  relief  sought  to  be  obtained  by  the 
judgment;  and  the  facts  showing  the  right  to  the  injunction 
were  therefore  material'  allegations.  But  there  is  nothing  in  the 
opinion  to  authorize  the  inference  that  facts  may  be  alleged,  even 
in  such  a  pleading,  which  are  not  "  material "  to  the  specific 
relief  sought,  or  which  cannot  properly  be  "  put  in  issue  and 
tried ; "  or,  if  the  injunction  be  only  asked  provisionally,  and  not 
as  a  part  of  the  general  relief  in  the  action,  that  the  facts  going 
to  show  the  right  to  the  injunction  can  be  set  out  in  the  com- 
plaint for  the  purpose  of  enabling  the  plaintiff  to  move  for  such 
injunction.^  Nor  does  the  decision  in  any  respect  conflict  with 
the  principles  laid  down  by  Justice  Gridley  in  Minor  v.  Terry. ^ 
So,  too,  in  the  later  case  of  Ma/nn  v.  Morewood^  in  the  superioi 
court,  similar  principles  were  applied  to  a  legal  action,  it  being 
held  that,  in  order  to  enable  the  court  to  judge  of  the  relief  that 
ought  to  be  given,  the  transaction,  in  all  its  material  circum- 
stances, must  be  set  forth  in  the  complaint.  It  is  not  enough  to 
set  forth  what  in  judgment  of  law  would  be  the  legal  conclusion 
from  certain  facts  proved  or  admitted,  as  might  have  been  for- 
merly done  in  the  old  common-law  money  counts,  but  the  facts 
themselves,  not  the  conclusions,  as  in  an  ordinary  action  on  the 
case,  must  be  set  forth,  without  prolixity,  but  with  reasonable 

fullness  and  certainty.  Nor  would  it  be  difficult  to  recon- 
[■^82]  cile  with  these  doctrines  the  actual  decision  in  *Z(3  Roy  v. 

MarahaU  and  others,*  heretofore  noticed,  and  that,  too, 
without  adopting  the  conclusions  arrived  at  therein,  that  from 

'  2  C.  R.  64  ;  3  id.  250.  «  5  Sand.  557. 

»  6  How.  Pr.  208  *■  8  How.  Pr.  373. 


SEC.  IV.]        RULES   TO   DETERMINE   SUFFICIENCY.  51 

tlie  nature  of  things  the  same  rules  cannot  govern  legal  and 
equitable  pleadings.  It  may  be  true,  as  was  there  stated,  that  ''a 
leoal  claim  is  a  single  proposition,  which  must  stand  in  all  its 
prrts  or  fall;  while  an  equitable  claim  may  be  composed  of 
numerous  independent  facts,  all  of  which,  or  only  a  portion,  may 
be  required  to  satisty  the  court."  But  it  is  none  the  less  true 
that  these  "independent  facts"  must  be  such  only  as  are  consti- 
tutive of  a  cause  of  action,  such  as  go  to  make  up  the  title  to 
relief,  and  as  can  be  "put  in  issue  and  tried;"  otherwise,  pre- 
cisely as  in  the  case  of  a  legal  action,  they  are  not  properly 

pleadable. 

That  such  was  the  intention  of  the  commissioners  of  the  Code 
is,  I  think,  clearly  apparent.  The  argument  which  is  urged 
against  the  practicability  of  attaining  this  result,  based  upon  the 
inherent  difference  between  legal  and  equitable  relief,  the  differ- 
ent forms  of  judgment,  and  the  different  modes  of  trial  required 
for  the  two  classes  of  cases,  has  been  already  sufficiently  answered 
by  what  was  said  in  the  first  section  of  this  chapter  relative  to  the 
origin  of  equitable  remedies,  and  of  the  different  forms  and  modes 
of  pleading  at  law  and  in  equity. 

As  to  how  far  the  Code  has  effected  an  uniformity  of  trial  of 
issues  of  fact  in  all  cases,  see  post,  ch.  viii,  §  2. 


[*83J  *CHAPTEE  II. 

OF  THE  PAETIES  TO  AN  ACTION. 

It  is  well  said  that  there  are  no  rules  connected  with  the  science 
and  practice  of  pleading  more  important  than  those  which  relate  to 
the  2)ersons  who  should  be  the  'parties  to  an  action.  The  remark 
was  equally  true  of  pleadings  in  equity  as  of  pleadings  in  actions  at 
law.  One  of  the  most  difficult  matters  in  framing  a  bill  in  chan- 
cery was  often  found  to  consist  in  determining  who  should,  and 
who  should  not,  be  the  parties,  notwithstanding  courts  of  equity 
were  never  tied  down  by  the  narrow  and  artificial  rules  applicable 
to  actions  at  law.  It  cannot  be  reasonably  expected,  therefore,  that 
this  difficulty  is  entirely  surmounted  by  the  Code,  or,  that  under 
its  provisions  there  is  really  more  certainty  in  determining  who 
should  be  proper  parties  to  an  action  than  heretofore  in  chancery 
pleading ;  for  the  Code  has  adopted,  with  slight  modifications,  the 
rule  in  relation  to  parties  which  has  heretofore  obtained  in  courts 
of  equity.' 

The  Code  has  made  a  radical  and  fundamental  change  in  the 
practice  in  one  respect.  It  found  the  rules  respecHng 
[*84]  parties  to  actions  as  widely  difi'erent  *in  actions  at  law  and 
suits  in  equity,  as  the  pleadings  and  proceedings  were.  Tlie 
direct  and  immediate  parties  having  a  legal  interest,  and  they  onh', 
could  be  required  to  be  made  parties  in  a  suit  at  law.  But  courts 
of  equity  frequently  required  all  persons  who  had  remote  and  future 
interests,  or  equitable  interests  only,  or  who  would  be  directly 
afiected  by  the  decree,  to  be  made  parties ;  and  the  court  would  not, 
if  such  persons  were  within  the  jurisdiction,  and  capable  of  being 
made  parties,  proceed  to  decide  the  cause  without  them.  Persons 
having  very  different,  and  even  opposite  interests,  were  often  made 
parties  defendant,  the  general  rule  being  that  all  persons  were  to  be 
made  parties  who  were  either  legally  or  equitahlij  interested  in  the 
subject-matter  or  result  of  the  suit,  if,  in  a  general  sense,  it  was 
practicable  to  do  so.^ 

The  Code  undertakes  to  abolish  these  distinctions,  and  provides 
geueral  ruIeS  respecting  parties  in  all  cases  and  forms  of  action. 
The  commissioners  say  they  had  a  three-fold  purpose  in  view  :  first, 
to  do  away  with  the  artificial  distinctions  existing  in  the  courts  of 
law,  and  to  require  the  real  party  in  interest  to  appear  in  court  as 
such ;  second,  to  require  the  presence  of  such  parties  as  are  neces- 
sary to  make  an  end  of  the  controversy  ;  and  third,  to  allow  other- 
wise great  latitude  in  respect  to  the  number  of  parties  who  may  be 
brought  in.^ 

'  Ppr  Mason,  .1.,  5  How.  Pr.  100.  »  Report  of  Com.  123. 

» Story'a  Eq.  PI.,  §  73. 


SEO.  I.]  APPEAEANCE  OF   PARTIES.  53 

It  will  be  the  object  of  the  present   chapter   to   inquire   "what 
changes  have  been  effected  by  the  Code,  and  what  rules  established, 
in  respect  to  the  parties  to  civil  actions.     The  chapter  is 
[*8o]     divided  into  three  *sections. 

1.  The  appearance  of  parties. 

2.  Who  are  the  proper  parties  plaintiff. 

3.  Who  are  the  proper  parties  defendant. 


SECTION  I. 

ON  THE  APPEARANCE  OP   PARTIES 

In  actions  at  law  any  one  might  appear  in  person,  except 
infants  and  corporations  aggregate :  the  former  must  appear  by 
next  friend  or  guardian,  the  latter  by  attorney.' 

As  a  general  rule,  a  married  woman  could  not  sue  or  be  sued 
alone,  either  upon  contracts  made  by  her  before  or  after  marriage, 
except  in  case  she  was  divorced,  or  the  husband  was  dead  in  law, 
or  his  death  was  presumed  by  reason  of  absence.'  "When  she 
a])peared  alone  she  must  appear  in  person,  but  husband  and  wife 
niiglit  appear  by  attorney.^ 

[In  a  suit  brought  against  husband  and  wife  to  foreclose  a 
mortgage  given  by  them,  if  process  be  served  upon  the  husband 
only,  and  he  retain  an  attorney  who  appeal's  for  both  the  husband 
and  the  wife,  she  cannot,  after  the  death  of  the  husband,  avoid  the 
judgment  on  the  ground  that  she  was  not  served  with  process.* 
If  no  attorney  had  appeared  for  the  wife,  the  judgment,  without 
service  of  process  upon  her,  would  not  have  affected  her  rights. 
If  the  action  be  one  in  which  the  interest  of  husband  and  wife 
do  not  conflict  upon  service  being  made  upon  the  husband,  it  is 
his  duty  to  appear  and  answer  for  both.**  But  in  a  suit  by  hus- 
band and  wife,  it  is  the  suit  of  the  husband,  and  she  is  not  bound 
by  the  judgment  thereon.'  And  where  the  action  is  against  hus- 
band and  wife  for  a  tort  by  the  wife,  she  is  entitled  to  a  stay  of 
proceedings  until  her  husband  is  served,  although  he  resides  out 

'  Tidd,  C9,  70  ;  2  Johns.  192.  Many  authorities  are  collected  in  Mac 

"  1  Chit.  PI.  28,  56.  Naghten's  Sel.  Cas.  76,  Duke  of  Ghavr 

^Dunl.  Pr.  86.  dos  v.  Talbot. 

*  Foote  V.  Lathrop,  53  Barb.  183.  "^  Hughe h  v.  Evans,  1  Sim.  &  Stu.  185; 

'  Foote  V.   Lathrop,    53    Barb.   183.  188,  and  Dunlap's  notes  to  Banks'  ed. 


64  PARTIES   TO   TJIE   ACTIOIST.  [CH.  II. 

of  the  State.'  Altliougii  the  vvii'e  live  separate  fi-om  her  hus- 
band.* It  has  been  held  that  in  such  an  action  the  husband  has  a 
right  to  control  it,  and  even  to  confess  judgment;'  but  if,  as  has 
been  recently  held,*  the  execution  may  be  issued  against  the 
property  of  both,  there  seems  to  be  no  reason,  upon  principle,  why 
the  wife  should  not  have  a  right  to  appear  separately  and  control 
her  defense.  The  husband  now  clearly  has  no  right  to  compro- 
mise or  release  an  action  brought  by  her  as  sole  plaintiff  for  an 
iniurv  to  her  person  or  character.'  Where  the  action  affects  the 
separate  property  and  individual  rights  of  the  wife,  she  must  be 
treated  as  a  feme  sole  and  served  with  process,  and  has  a  right  to 
answer  separately."  The  husband  is  not  a  necessary  party  in  an 
action  against  the  wife  for  an  injury  done  by  her  separate  prop- 
erty.'] 

Idiots  were  required  to  appear  in  person,  and  a  lunatic  of  full  age 
in  person  or  by  attorney  ;  and  the  committee  of  an  idiot  or  lunatic 
could  not  maintain  an  action  on  behalf  of  the  lunatic ;  the  suit  was 
required  to  be  brought  in  the  name  of  the  lunatic*  in  an  action  con- 
cerning his  realty  as  well  as  his  personal  estate.*  The 
[*86]  *committee  was  neither  a  necessary  nor  a  proper  party, 
either  as  plaintiff  or  defendant,  in  any  action  respecting 
the  person  or  property  of  his  ward.  [The  action  should  be  in 
the  name  of  the  lunatic  by  his  committee,  although  since  the  Code 
it  may^  in  some  cases,  be  in  the  name  of  the  committee."] 

Though  it  was  a  contempt  of  court  to  sue  a  lunatic  after  the 
appointment  of  a  committee  without  the  permission  of  the  court," 
yet  it  has  been  repeatedly  held  that  the  lunatic  was  liable  to  be 
sued  in  an  action  at  law,  and  the  judgment  obtained  was  not  only 
valid,  but  regular."  The  lunatic,  and  not  the  committee,  was  the 
proper  party  to  appear  and  defend  the  suit." 

So  far  as  respects  the  bringing  of  an  action  by  an  idiot  or  luna 

» Hortm  V.  Paijne,  27  How.  374,  and  ">  Rowe  v.  Smith,  55  Barb.  417. 

Bee  post,  marg.  p.  93.  *  Shelf,  on  Lunacy,  395 ;  24  Wend.  85. 

»  Wdte  V.  Seaver,  6  Irish  L.  R,  465.  »!  Hill,  97. 

»  Coolidge  v.  Paris,  8  Ohio  St.  594.  'o  Clark's   Chy.  119,   Moak's  notes ; 

*  Flanagan  v.  Tinen,  53  Barb.  587.  Persons  v.  Warren,  14  Barb.  489,  490 ; 

»  Post,  marg.  p.  93  ;   Laws  1860,  p.  Dams  v.  Spenrer,  24  N.  Y.  386. 

158,  ^  7  ;  4  Edm.  St.  516  ;  Ball  v.  Bui-  "  5  Paige,  489. 

lard,  52  Barb.  143.  "  2  Barb.  153,  and  cases  there  cited. 

«  Di/ett  V.  JVorth  Am.,  etc.,  20  Wend.  '^  See   Clarke's    Chy.     119,  Moak'a 

570  ;  Ilnrley  v.  Bitter,  9  Abb.  400  ;  18  notes. 
How.  147  ;  see  post,  marg.  p.  88. 


SEC.  I.]  APPEARANCE   OF   PARTIES.  55 

tic,  the  rule  of  the  common  law  was  changed  by  the  statute  of 
1845/  which  permits  receivers  and  committees  of  lunatics  and 
habitual  drunkards  to  sue  in  their  own  names  for  "  any  debt, 
claim  or  demand  transferred  to  them,  or  to  the  possession  and 
cxjntrol  of  which  they  are  entitled  as  such  receiver  or  committee." 
Before  the  passage  of  the  Code,  therefore,  all  actions,  other  than 
those  mentioned  by  this  statute,  must  be  brought  in  the  name  of 
the  lunatic,  and  all  actions  of  every  kind  against  him  personally, 
without  joining  his  committee.  We  will  presently  inquire  what 
effect  the  Code  has  produced  upon  this  practice. 

The  rule  in  respect  to  the  appearance  of  parties  in  equity  was 

somewhat  different,  except  in  the  case  of  infants  and  corporations. 

The  first  appeared  by  next  friend  or  guardian,  and  could 

[*87]     not  sue  or  be  *sued  in  person,  or  appear  by  attorney.' 

Corporations  aggregate  appeared  by  a  solicitor.' 

In  suits  in  equity,  though,  in  general,  a  husband  and  wife  ought 
to  join,*  yet,  where  the  wife  demanded  relief  for  her  separate 
property,  or  for  a  separate  maintenance  settled  by  the  husband, 
she  might  sue  alone."*  In  respect  to  her  separate  estate,  she  was 
looked  upon  as  a  feme  sole.  In  a  court  of  equity,  though  not  at 
law,  husband  and  wife  were  considered  as  two  different  persons. 
The  wife,  by  her  next  friend,  might  sue  her  husband,  and  the 
husband  file  a  bill  against  his  wife."  The  wife  appeared  in  the 
action  by  her  next  friend,^  and  when  the  suit  was  brought,  to 
recover  her  separate  property,  the  husband  was  not  a  proper  party 
as  co-plaintiff.*  A  bill  filed  by  the  husband,  in  the  name  of  him- 
self and  wife,  was  his  bill  merely,  and  the  decree  made  in  such  a 
suit  was  not  binding  uj)on  her  in  any  future  litigation.  [He  could 
receive  and  acknowledge  satisfaction,  and,  after  her  death,  have 
scire  facias  upon  the  judgment.^]  Where  the  interests  of  the 
husband  and  wife  were  in  conflict,  he  could  not  join  her  as  co- 
complainant,  but    in    such   case   she  must   be  made   a   defend- 

'  2  R.  S.  (3d  ed.)  115.  s  storv's  Eq.  PL,  §  63 ;  10  Paige,  193 

^Mitf.  Eq.  25.  6  Barb.  S.  C.  403. 

3  1  Barb.  Ch.  Pr.  87.  »  Mann  v.  Marsh,  35  Barb.  70 ;  but 

*  5  Johns.  Ch.  19G.  see   AckUy  v.   Tarbox,  31  N.  Y.  504 

*  2  Ves.  Sen.  452 ;  Edw.  on  Parties,  that  the  husband's  name  may  be 
144 ;  13  Ves.  190,  266.  stricken  out  and  the  judgment  allowed 

*  Id.  5  Paige,  581.  to  stand  in  the  name  of  the  wife. 
'  5  Paige,  517. 


6f5  PARTIES   TO  THE  ACTIOTiT.  [CH.  II. 

ant/  If  the  husband  was  abroad,  or  banished,  or  an  alien  enemy, 
or  had  abjured  the  country,  a  married  woman  might  exhibit  a 
bill  alone,  as  if  she  were  2ifeme  sole?' 

If  the  wife  was  a  cestui  que  trusty  and  it  was  necessary 
[*88]  she  should  file  a  bill,  it  was  done  by  her  next  *  friend.'  By 
statute  a  wife  might  exhibit  a  bill  for  divorce  a  vinculo^ 
without  a  next  friend,*  but  it  was  held  that  in  a  case  for  a  limited 
divorce  she  must  appear  by  her  next  friend/  Where  tlie  wife 
was  defendant,  it  was  a  general  rule  that,  in  the  absence  of  her 
husband,  she  must  appear  by  guardian.*  But  where  the  bill  was 
brought  by  the  husband,  she  was  treated  as  a  feme  sole^  and  no 
guardian  was  necessary  in  such  a  case.'  In  general,  husband  and 
wife  must  appear  and  defend  together,*  but  if  she  claimed  in 
opposition  to  him,  or  lived  separate  from  him,  or  disapproved  of 
the  defense  he  wished  her  to  make,  she  might  obtain  an  order  to 
defend  the  suit  separately.'  If  a  married  woman  under  age  was 
a  party  she  appeared  by  guardian." 

The  rule  in  respect  to  the  appearance  of  idiots  and  lunatics  in 
suits  in  equity  was  also  widely  different  from  that  which  prevailed 
in  the  courts  of  law.  Idiots  and  lunatics  almost  always  sued  by 
their  committees ;  they  also  answered  and  defended  by  their  com- 
mittees," and  the  lunatic  need  not  be  made  a  party  defendant."  He 
might,  however,  be  joined,  though  this  was  a  mere  matter  of  form, 
and  the  committee,  as  of  course,  put  in  the  answer  as  his  guardian." 
Where  the  lunatic  and  committee  were  sued  jointly,  the  latter,  if 
he  had  no  interest  adverse  to  the  lunatic,  would,  as  a 
[*89]  matter  of  course,  be  appointed  *  his  guardian  ad  litem?* 
Though  a  lunatic  was  not  a  necessary  party  in  a  bill  to 
Bet  aside  his  own  acts,"  to  obtain  payment  of  a  debt,"  etc.,  etc.,  yet 
he  was  an  indispensable  party  to  a  bill  for  the  recovery  of  lands, 
partition  and  other  actions  concerning  real  property."     It  was 

I  9  Psdge.  2o5  ;  3  Barb.  Cli.  397.  '<>  Edw.  on  Parties,  155. 

»  Coop.  Ef].  204.  "  Edw.  on  Parties,  205,  311. 

»  Edw.  on  Parties,  146.  "  2  Johns.  Ch.  242. 

*  2  R.  S.  144,  §  39  ;  2  Paige,  108.  '» 2  Johns.  Ch.  242. 

•>  8  Wend.  370.  "  6  Paige,  237  ;  1  C.  R.  N.  S  309. 

« Edw.  on  Parties,  154.  "  7  Johns.  Ch.  139 

'  3  Atk.  478.  "  3  Paige,  470. 

8  Coop.  Eq.  24.  "  3  Barb.  Ch.  24. 

9  Coop.  E(i.  30,  31 ;  1  Johns.  C.  24 ;  3 
id.  139  ;  see  ante,  marg.  p.  85. 


SEC.  I.]  APPEARANCE   OF   PARTIES.  57 

also  laid  down  as  a  general  and  a  safe  rule  that  a  lunatic  ought 
to  be  made  a  party  in  all  actions  for  the  benefit  of  his  estate,  and 
the  bill  should  be  filed  as  his  bill  by  his  committee,  or  in  the 
names  of  both.  The  general  practice  was,  even  where  the  lunatic 
was  not  a  necessary  party,  to  unite  him  with  his  committee.* 

A  similar  rule  would  apply  to  all  kinds  of  trustees.  The  cestui 
que  trust,  if  not  always  a  necessary,  was  almost  always  a  proper 
party,  with  the  trustee,  in  actions  concerning  the  trust  fund  or 
property.  Where  the  trustee  commenced  an  action,  it  was  gener- 
ally requisite  to  make  the  cestui  que  trust  a  party,  otherwise  the 
latter  would  neither  obtain  relief  nor  be  bound  by  it.''  [A  gen- 
eral guardian,  appointed  by  a  surrogate,  may  maintain  an  action 
in  his  own  name  upon  a  contract  made  with  him  as  such.^]  In 
enforcing  a  demand  arising  prior  to  the  creation  of  tlie  trust, 
against  a  trustee  as  defendant,  it  was  not  necessary  to  make  the 
cestuis  que  trusts  parties,  if  the  absolute  disposition  of  the  prop- 
erty was  vested  in  the  trustees.* 

"We  are  next  to  notice  how  these  rules  relative  to  the  appear- 
ance of  parties  are  aliected  by  the  Code.     And  first : 

In  respect  to  infants,  the  Code  provides, 
[*90]       *  §  115.  "When  an  infant  is  a  party,  he  must  appear  by 
guardian,  who  may  be  appointed  by  the  court  in  which 
the  action  is  prosecuted,  or  by  a  judge  thereof,  or  a  county  judge." 

This  rule  of  the  Code  is  precisely  the  same  as  that  which  here- 
tofore existed,  both  at  law  and  in  equity.  An  infant  can  in  no 
case  appear  in  person.  He  must  appear  by  guardian,  who  is 
appointed  by  order  of  the  court  for  that  purpose  in  the  manner 
prescribed  by  the  Code,**  and  the  rules  of  the  court."  No  process 
whatever  can  issue  in  behalf  of  an  infant  plaintiff  until  a  guardian 
has  been  appointed,'  and  the  provisions  of  the  Revised  Statutes, 
it  has  been  held,  are  not  changed  in  this  respect  by  the  Code.  If 
it  appear  that  the  next  friend  was  appointed  after  the  issuing  of 
the  summons,  it  will  be  set  aside  as  irregular.*  If  no  guaixlian 
has  been  appointed  at  all,  or  the  complaint  is  in  the  name  of  the 

*  7  Johns.  Ch.  139.  «  Section  116. 

2  Edw.  on  Parties,  158  ;  3  Jolins.  Ch.  «  Sup.  Court  Rules,  Gl-70. 

238 ;  1  Paige,  20.  '  Hill  v.  T hacker,  3  How.  Pi.  407. 

*  ThunMn  V.  Bennett,  56  Barb.  197.  ^  Id.     Gvdimj    v.   Acker,  25  Wend. 

*  Coop.  Eq.  74 ;  Edw.  on  Parties,  161.  638. 


58  PAETIES   TO   THE  ACTIOIST.  [CH.  II. 

infant  alone,  and  it  appear  upon  its  face  that  the  plaintiff  is  an 
infant,  the  defendant  may  demur  on  the  ground  that  the  plaintiff 
has  not  legal  capacity  to  sue.  If  the  fact  of  the  plaintiff's  infancy 
does  not  appear  on  the  face  of  the  complaint,  the  objection  must 
be  taken  by  answer.  But,  if  the  defendant  answer  without  raising 
the  objection  either  way,  it  will  be  held  to  be  waived. '  [Otherwise 
as  to  an  infant  defendant."  The  omission  to  procure  the  appoint- 
ment of  a  guardian  is  an  irregularity  merely.'  If  an  infant  sue 
without  guardian,  the  defendant  may  move  to  set  aside  the  pro- 
ceedings,* or  take  advantage  of  the  infancy  by  answer,*  But 
after  answer,  it  is  too  late  to  raise  objections  to  such  irregularity." 
After  trial  and  verdict,  a  plaintiff  cannot  procure  the  appointment 
of  a  guardian  for  an  infant  defendant,  nunc  jn'o  tuncJ 
Although,  if  properly  appointed,  the  omission  to  file  a  bond  may 
be  so  remedied,  after  an  infant  arrives  at  majority,  he  will,  if 
necessary  to  protect  his  right,  be  allowed  to  interpose  a  new 
answer.*] 

It  has  been  held,  that  under  the  Eevised  Statutes,  which  pre- 
scribe that  a  guardian  must  be  appointed  "before  any 
[*91]  process  can  be  issued  in  the  name  of  an  *infant  Mho  is 
sole  ^laintiff,^^^  it  is  unnecessary  to  have  a  next  friend 
appointed  where  the  infant  is  joined  as  plaintiff  with  others ;''  and 
in  another  case  it  was  held,  that  a  guardian  for  an  infant  wife  who 
joins  with  her  husband  was  unnecessary,  unless  the  action  w^as  to 
recover  her  separate  property."  [So  where  a  judgment  was 
obtained  against  an  infant  under  the  joint  debtor  act."]  The  above 
cases,  it  seems  to  me,  cannot  be  safely  followed  as  precedents. 
The  Code  declares  that,  when  an  infiint  "  is  a  party "  he  must 
appear  by  guardian,  no  matter  whether  as  sole  plaintiff  or  jointly 
with  adults."    When  an  infant  wife  joins  her  husband,  no  doubt 

1  Code,  ^§  144, 147,  148  ;  Uastings  v.        "<  Boylen  v..  McAvop,  29  How.  278 ; 

McKinley,  Seld.  Notes,  Ct.  of  A])p.,  Oct.  Fairweather  v.  Satterly,  7  Rob.  546. 
liio'<i;  Croffhntiv.  Licingnton.n  "S .Y .221.        ^  Stephenson  v.  Stephenson,  6  Paige, 

^  Fairweather  v.  Satterly,  7  Rob.  o46.  353 ;  Croghan  v.  Livingston,  17  N.  Y. 

5  Rutter  V.  Packofer,  9  Bosw.  638  ;  218. 
Croghan  v.  Liwngston.  17  N.  Y.  221 ;        » 2  R.  S.  446,  ^  2. 
Barnard  v.  Heydrick,  2  Abb.  N.  S.  48.         '» Hulbert  v.  Neicell,  4  How.  Pr.  93 

*  Freyherg  v.  Pclerin,  24  How.  203.  "  Cook  v.  liawdon,  6  How.  Pr.  233. 

'  Triadirell  v.  Bruder,  3  E.D.Smith,  ^-  Mason  v.  Denison,  11  Wend.  613 

597 ;  Croghan  v.  Livingston,  17  N.  Y.  affirmed,  15  Wend.  64. 

221.  ^^Boylen  v.  McAvoy,  29  How.  279 

•  Parks  V.  Parks.\%  Abb.  161. 


SEC.  I.J  APPEARANCE   OF  PARTIES.  59 

it  would  be  proper,  as  under  the  former  equity  practice,  to  appoint 
the  husband  as  guardian,  unless,  as  in  the  case  referred  to,  the 
action  was  to  recover  her  separate  property. 

An  infant  must  also  appear  in  all  cases  by  guardian  where  he 
is  a  party  defendant.  No  judgment  can  be  regularly  taken 
against  an  infant  by  default,*  nor  can  his  guardian  make  any 
admissions  to  aifect  his  rights  injuriously,  or  suffer  judgment  by 
default.'  The  answer  is  termed  the  answer  of  the  guardian,  and 
not  of  the  infant,  and  in  cases  where  an  oath  was  necessary,  it  was 
sworn  to  by  the  guardian.'  The  answer  could  not,  however,  be 
read  against  the  infant.*  Nor  could  a  complainant  by  any  form  of 
pleading  compel  an  infant  to  become  a  witness  against  him- 
self.^ 
[*92]  *There  does  not  seem  to  be  any  thing  in  the  Code  incon- 
sistent with  the  application  of  these  principles  in  the  new 
system.  In  Hill  v.  Thacter,  sujpra,'^  it  was  said,  that  the  guardian 
of  an  infant  plaintiff  might,  in  that  character,  have  verified  the 
complaint  under  the  Code.' 

No  proceedings  can  be  taken  against  an  infant  defendant  after 
the  commencement  of  the  action  until  his  guardian  is  appointed. 

The  infant  himself  has  twenty  days  to  make  application  for  the 
appointment  of  his  guardian,  but  he  may  apply  after  that  time 
unless  the  plaintiff  forestall  him  in  his  application.* 

Appearance  of  married  women.  The  equitable  rule  which 
recognized  the  separate  legal  existence  of  the  wife  in  cases  con- 
cerning her  individual  property,  and  actions  between  herself  and 
husband,  is  enacted  by  the  Code.     Section  114  provides : 

When  a  married  woman  is  a  party,  her  husband  must  be  joined 
with  her,  except  that, 

1.  When  the  action  concerns  her  separate  property  she  may  sue 
alone. 

2.  When  the  action  is  between  herself  and  her  husband,  she 
may  sue  or  be  sued  alone.  And  in  no  case  need  she  prosecute  or 
defend  by  a  guardian  or  next  friend. 

•  3  Code  R.  28.  » 5  Paige,  536. 

2  4  Paige,  I60.  « 3  How.  Pr.  407. 

3 1  Barb.  Ch.  Pr.  148.  '  See  post,  mwrg.  p.  374. 

■*  G  Paige,  353 ;  Andble  v.  AnaMe,  *  McCoimell  v.  Adams,  1  0.  R.,  N.  S. 
24  How.  92.  114. 


60  PARTIES   TO   THE   ACTION.  [CH.  II. 

The  words  in  italics  are  the  last  amendment  made  in  1857. 
Before  this  amendment  it  was  held  in  the  case  of  Colt  v. 
[*93]  Goit^  and  affirmed*  on  appeal  by  the  general  term  of  the 
first  district,*  that  a  wife  could  not  sue  her  husband  with- 
out a  next  friend,  except  in  the  single  case  of  a  suit  for  absolute 
divorce,  provided  for  by  statute,  and  that  the  Code  had  made  no 
change  in  this  respect.  The  same  rule  was  adhered  to  by  the 
justice  who  decided  that  case  at  the  special  term,  on  another 
occasion.* 

In  the  superior  court  of  New  York,  Justice  Campbell,  after 
consultation  with  his  associates,  held  the  contrary  doctrine.* 
Justice  MoNsoN '  held,  that,  in  all  cases  between  husband  and 
wife,  the  latter,  unless  an  infant,  might  sue  alone,  mthout  a  next 
friend,  and  the  supreme  court  of  the  eighth  district  have  made  a 
similar  decision. 

The  above  amendment,  however,  seems  to  have  settled  the  rule 
that,  where  the  wife  sues  or  is  sued  by  her  husband,  she  need 
not,  unless  an  infant,  appear  by  her  next  friend.  [In  an  action 
against  a  married  woman  for  a  wrong  against  her  person  or  charac- 
ter, she  may  now  sue  alone.''  But  for  a  tort  hy  her,  the  husband 
must  be  joined.*  So,  in  an  action  upon  an  indebtedness  contracted 
by  the  wife  before  marriage,*  when  the  complaint  and  judgment 
should  be  special  and  conform  to  the  language  of  the  statute,  that 
judgment  be  awarded  against  the  husband  for  the  amount  of  the 
separate  property  of  the  wife,  or  any  portion  thereof  acquired  by 
him  since  July  18,  1853,  by  any  ante-nuptial  contract  or  other 
wise."  The  amount  of  property  the  husband  so  received  should 
probably  be  determined  by  the  judgment,  and  the  execution  con- 
form thereto.  This  provision  is  not  repealed  or  affected  by  the 
later  statutes,  which  are  not  inconsistent  therewith." 

It  was  the  common  equity  practice,  and  was  repeatedly  held  in 

•  4  How.  Pr.  232.  Payne,  27  How.  374  ;  Flanagan  v. 
«  6  How  Pr.  53.  Tinen,  53  Barb.  587,  37  How.  130  ;  An- 
'  For  rent  v.  Forrest,  3  C!ode  R.  254.  derson  v.  Hill,  53  Barb.  238  ;  and  see 

*  2  Sand.  715.  ante,  marff.  p.  85. 

»  3  C.  R.  40  ;  4  Pr.  346,  Otsego  special  »  Laws  1853,  p.  1057 ;  4  Edm.  St.  515  ; 
tenn,  1850.  Horton    v.    Payne,  27    How.   374 ;    1 

•  3  C.  K.  183.  Whit.  Pr.  (3d  ed.)  174.  175. 

•>  Laws  1800,  p.  158,  §  7  ;  4  Edm.  St.         '»  Foote  v.  Morns,  12  Leg.  Obs.  61. 
516  ;  Bfill  V.  Bidlard,  52  Barb.  141.  "  Laws  1860,  p.  159,  i^  8:   4   Edm. 

*  Afirsh  V.  Potter,  30  Barb.  506  ;  Ma-  St.  516  ;  Laws  1862,  p.  345,  §  5  ;  4  Edm. 
lone  V.  StUwell,  15  Abb.  425 ;  Uortoii  v.  St.  517. 


SEC.  I.J  APPEARANCE   OF   PARTIES.  61 

this  State  before  tlie  Code,  that  a  suit  in  relation  to  the  wife's 
separate  property,  where  the  interests  of  the  husband  and  wife 
were  in  confliot,  could  not  be  brought  in  the  names  of  both.  The 
wife  must  prosecute  by  her  next  friend,  and  the  husband  should 
be  made  a  party  defendant ;  or,  where  the  husband  brings  an 
action,  and  his  interests  may  conflict  with  those  of  the  wife,  slie 

should  be  made  a  party  defendant.  The  action  in  tlie 
[*97]     name  of  husband  *and  wife,  being  regarded  as  the  suit 

of  the  husband  alone,  and  the  wife  being  entitled  to  her 
separate  action,  in  respect  to  her  separate  property,  such  an  action 
would  not  preclude  her  from  bringing  another  by  her  next  friend. 
The  husband  ought  not,  therefore,  and  cannot,  be  joined  with 
her  where  the  wife's  interests  conflict  with  his.*  These  rules,  it 
seems  to  me,  on  both  principle  and  authority,  are  fully  applicable 
to  the  system  of  pleadings  devised  by  the  Code.  [K  the  action 
relate  to  the  wife's  separate  property,  the  husband  ought  not  to 
be  made  a  co-plaintiff,  although,  if  he  be,  the  court  will  strike  out 
his  name  as  a  plaintiff; '  or,  if  the  husband  be  joined  in  an  action 
concerning  the  wife's  separate  property,  the  defendant  may 
demur  to  the  complaint,  on  the  ground  that  it  does  not  state  a 
cause  of  action  in  favor  of  the  husband,  when  the  complaint  will 
be  dismissed  as  to  him.*  In  actions  relating  to  real  estate  of  the 
wife,  where  the  husband  has  an  estate,  if  he  now  have  one,  by  the 
courtesy  he  may  be  joined  as  a  plaintiff,*  although  it  is  better 
then  to  make  him  a  defendant. 

A  married  woman  may  sue  her  husband  for  converting  money 
belonging  to  her  separate  estate,*  but  not  for  slander,*  she  may  in 
ejectment;'  and  the  husband  will  be  restrained  by  injunction 
from  occupying  a  house  which  is  the  separate  property  of  the 
wife,  even  though  she  reside  therein,  and  the  injunction  operate 
as  a  divorce  a  mensa  et  thoro.^^ 

'  Story's  Eq.  PL,  §§  61,  62  and  63,  »  Whitney  v.  Whitney,  3  Abb.  N.  S. 

and  notes  ;  2  Ves.  453  ;   7  Sim.  239  ;  1  350,  49  Barb.  319. 

Sim.  &  Stu.  185  ;  6  Barb.  S.  C.  404 ;  3  «  Freethy  v.  Freethy,  42  Barb.  641. 

Barb.  Ch.  397  ;  9  Paige,  255 ;  10  id.  193 ;  '  Minier  v.  Minier,  4  Lans.  421  ;  but 

2  Barb.  S.  C.  493.  see  Oould  v.  Oould,  29  How.  44.1. 

*  Arkley  v.  Tarhox,  31  N.  Y.  564.  8  Qreen  v.  Green,  5  Hare  (26  Eng. 
2  Palmer  v.  Davis,  28  N.  Y.  242.  Ch.)  400,  note  ;   Kerr  on  Inj.  (Eng.  ed.) 

*  Tngraham  v.  Baldwin,  12  Barb.  9,     331. 
affirmed,  but  point   not   discussed,  9 

N.  Y.  45. 


62  PAETIES   TO   THE   ACTION.  [CII.  II. 

[*105]  *And  so  in  an  action  for  the  partition  or  sale  of  real  estate, 
held  in  common,  the  wife  of  the  plaintiff  is  a  proper  and 
necessary  party,  and  must  be  joined  with  her  hnsband  in  the 
action  [and  if  she  be  not,  the  objection  may  be  taken  by  answer]. 
So  held  by  Justice  Crippen  in  Ripple  v.  Gilhorn  and  others.'^ 
These  eases  are  not  inconsistent  with  the  principles  above  laid  down, 
the  decisions  being  placed  on  the  ground  that  the  husband  or  wife 
has  an  inchoate  right,  and,  consequently,  an  interest  in  the  prem- 
ises, and  that  the  Code  directs  all  persons  having  an  interest 
in  the  subject  of  the  action,  and  in  obtaining  the  relief  to  be 

demanded,  to  be  joined  as  plaintifi's. 
[*106]  *The  appearance  of  idiots,  lunatics,  etc.,  by  their  commit- 
tees, and  of  persons  acting  in  a  fiduciary  or  representative 
character  generally,  will  be  considered  in  the  two  following  sec- 
tions under  the  heads  of  parties  plaintiff,  and  parties  defendant. 
It  is  not  necessary  that  all  the  defendants  should  actually  appear 
or  be  served  with  process  in  an  action,  in  order  to  enable  the 
plaintiff  to  proceed  in  the  suit.  When  a  summons  shall  have 
been  served  on  one  or  more  of  the  defendants,  but  not  on  all,  the 

Code'  provides  that  the  plaintiff  may  proceed  as  follows : 
[*10T]  "1.  If  the  action  be  against  defendants,  jointly  *  in- 
debted upon  contract,  he  may  proceed  against  the  defend- 
ant served,  unless  the  court  otherwise  direct ;  and,  if  he  recover 
judgment,  it  may  be  entered  against  all  the  defendants  thus  jointly 
indebted,  so  far  only  as  that  it  may  be  enforced  against  the  joint 
property  of  all  and  the  separate  property  of  the  defendant  served, 
and,  if  they  are  subject  to  arrest,  against  the  persons  of  the  defend- 
ants served ;  or,  2.  If  the  action  be  against  defendants  severally 
liable,  he  may  proceed  against  the  defendants  served  in  the  same 
manner  as  if  they  were  the  only  defendants.  3.  If  all  the 
defendants  have  been  served,  judgment  may  be  taken  against  any 
or  either  of  them  severally,  when  the  plaintiff  would  be  entitled 
to  judgment  against  such  defendant  or  defendants,  if  the  action 
had  been  against  them,  or  any  of  them,  alone.  4.  If  the  name 
of  one  or  more  partners  shall,  for  any  cause,  have  been  omitted 
in  any  action  in  which  judgment  shall  have  passed  against  the 

'  8  How.  Pr.  456  ;  [see,  however,  1         «  Code,  §  136. 
Story's  Eq.  Jur.,  §  65G]. 


8EC.  I.]  APPEARANCE   OF   PARTIES.  63 

defendants  named  in  the  summons,  and  such  omission  shall  not 
have  been  pleaded  in  such  action,  the  plaintiff,  in  case  the  judg- 
ment therein  shall  remain  unsatisfied,  may,  by  action,  recover  of 
such  partner  separately,  upon  proving  his  joint  liability,  notwith- 
standing he  may  not  have  been  named  in  the  original  action  ;  but 
the  plaintifi"  shall  have  satisfaction  of  only  one  judgment  rendered 
for  the  same  cause  of  action.  And  by  a  subsequent  section  of 
the  Code,'  where  judgment  shall  have  been  recovered  against 
joint  debtors,  those  who  were  not  originally  summoned  to  answer 
the  complaint  may  be  summoned  to  show  cause  why  they  should 
not  be  bound  by  the  judgment. 

It  is  only  in  case  oi  joint  debtors  that  a  judgment,  even  in 
form,  can  be  entered  against  a  party  who  does  not  appear,  or  is 
not  brought  into  court  by  service  of  process.  Thus,  in  a  suit 
brought  against  the  heirs  of  a  person  dying  intestate,  it  was  held 
that,  the  statute  creating  no  joint  liability,  a  judgment  in  form 
could  not  be  entered  against  those  of  the  defendants  not  served.' 
If  the  defendants  are  jointly  liable,  and  not  severally, 
[*108]  the  complaint  and  proceedings  must  be  against  *all  the 
parties,  and  the  judgment  in  form  so  entered,  although 
all  do  not  appear,  or  have  not  been  served  with  process.'  [And 
it  is  irregular  to  enter  judgment  against  one  defendant  while  the 
others  remain  parties  to  the  record."  But  the  judgment  should 
direct  the  amount  recovered  to  be  made  of  the  joint  property  of 
both  defendants,  and  the  property  of  the  defendants  served,^  and 
is  a  judgment  only  in  form  against  the  defendant  not  served.'] 
If,  however,  the  defendants  are  severally  as  well  as  jointly  liable, 
the  complaint  and  judgment  may  be  against  the  parties  served 
with  process  alone.^  There  is  nothing  in  the  Code  to  prevent 
the  application  to  a  summons  and  complaint  of  the  former  prac- 
tice, which  allowed  a  plaintiff  to  declare  against  one  of  several 
persons  named  in  a  w^rit  which  did  not  require  special  bail,"  and 
to  take  judgment  against  such  defendant,  if  seve^'oLly  liahle,  be« 

'  Id.,  §  375.  «  Foster    v.   Wood,  30  How    284,  1 

»  Stannanl  v.  Mattice,  7  How.  Pr.  4.        Abb.  N.  S.  150. 

^  MecJmnicx  and  Farmers'  Bank  v.  ">  Stnnnardy.  Mnttice,!  How.  Pr.  4_ 
Rider,5'H.ow.FTA01;Laheyy.Kin.gon,  ^Trains  and  others  v.  lobias  and 
13  Abb.  193.  ■  others,  7  How.  Pr.  90. 

•*  mics  V.  Battershall,  2  Rob.  146. 

^  Northern  Bank  v.  Wright,  5  Rob. 
605. 


64  PAETIES   TO   THE  ACTION.  [CH.  II. 

fore  getting.,  the  other  parties  into  court,  or  serving  them  with 
process.  [If  the  plaintiff  desire  to  proceed  to  a  separate  trial 
against  a  portion  of  the  defendants,  he  should  obtain  leave  to  do 
so  on  application  to  the  court.'] 


SECTION  II. 

OP  PARTIES  PLAINTIFF. 

The  rule  at  common  law,  before  the  Code  went  into  effect, 
was,  that  actions  on  contract  must  be  brought  in  the  name 
of  the  party  in  whom  the  legal  interest  was  vested."  The  legal 
interest  did  not,  in  all  cases,  mean  the  ownership  of,  or  jpro}}- 
erty  in,  the  contract.     Thus  a  contract  might  be  assigned,  but 

a  right  of  action  for  a  breach  of  the  contract  did  not 
[*109]  pass  with  the  assignment,  except  in  the  case  of  bills  of 

exchange  and  promissory  notes,  where  the  contract  was 
made  transferable  by  law,  so  as  to  vest  the  property  absolutely  in 
the  assignee.'  And  though  in  cases  other  than  these,  the  contract 
became  in  fact  the  property  of  the  assignee,  yet  a  suit  for  the 
breach  of  it  could  not  be  in  his  own  name,  but  must  be  brought 
in  the  name  of  the  assignor  or  original  creditor."  The  assignee 
might  sue  in  his  own  name  on  a  new  promise  made  to  him,  sub- 
sequent to  assignment,  for  this  was  regarded  in  the  light  of  a 
new  agreement  or  contract.'  If  the  assignor  were  dead,  the 
assignee  must  sue  in  the  name  of  the  executors  or  administrators 
of  the  assignor.  But  by  the  statute  of  1835,'  if  there  were  no 
executors,  or  the  executors  had  no  interest,  or  relused  to  prose 
cute,  the  action  might  be  in  the  name  of  the  assignee. 

In  equity  the  rule  was  directl}'  the  reverse.  Courts  of  equity 
allowed  aiid  protected  assignments,  and  the  assignee,  in  whom 
was  vested  the  equitable  interest  and  right  of  property  in  the 
contract,  was  the  proper  person  to  avail  himself  of  the  remedy.^ 
The  assignor  was  neither  a  necessary  nor  a  proper  party  plaintiff; 

I  Ward  V.  Dewey,  12  How.  195  ;  Mor-  «  1  Chit.  PI.  17  ;  4  How.  Pr.  63. 

ris  V.  CrniPford,  10  Abb,  124  ;  Ooodyenr  *  2  Black.  Com.  442. 

V.  Brooks,  4   Rob.   682,  688  ;   but  see  '  8  T.  K.  595. 

Ournee  v.  Hoxie,  29  Barb.  547.  «  Laws  18:35,  ch.  197,  p.  229. 

*  1  Chit.  PI.  2.  '  6  Paige's  Ch,  539 ;  6  id.  598  ;  7  id.  21. 


18EC.  II.]  OF   PARTIES   PLAINTIFF.  05 

or,  as  has  been  well  stated,  "  if  the  assignee  sues  at  law  he  is 
turned  out  of  court,  and  if  the  assignor  sues  in  equity  he  is  turned 
out  also." 

Heal  party  in  interest  must  he  plaintiff .  The  Code  of  Proce- 
dure has  adopted,  with  slight  modifications,  the  rule  in 
[*110]  relation  to  parties  which  has  heretofore  *obtained  in  courts 
of  equity.  With  the  exceptions  mentioned  in  section  1 13, 
the  suit  must  be  prosecuted  in  all  cases  in  the  name  of  the  party  in 
interest,  and  the  rule  which  has  prevailed  in  equity,  with  these 
modifications,  may  be  very  safely  applied.'  By  the  rule  in  equity 
the  plaintifi:'  must  be,  at  the  time  of  the  commencement  of  the 
suit,  innnediately  interested  in  the  subject-matter  of  it,  and  the 
suit  could  not  be  prosecuted  in  the  name  of  a  mere  nominal 
plaintiff,  as  might  have  been  done  in  an  action  at  law,  on  a  nego- 
tiable promissory  note  or  bill.  And  it  was  a  fatal  objection,  that 
some  of  the  complainants  showed  no  right  whatever  to  participate 
in  the  relief  sought." 

The  section  of  the  Code^  which  adopts  the  equity  rule  and 
requires  every  action  to  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  as  provided  in  section  113,  contains  also  the 
following  restriction :  "  but  this  section  shall  not  be  deemed  to 
authorise  the  assignment  of  a  thing  in  action  not  arising  out  of 
contract^''  It  may  be  of  importance  briefly  to  examine  this 
restriction,  and  to  ascertain  how  far  it  extends. 

It  has  been  held  in  this  State,  before  the  Code,  that  a  cause  of 
action  arising  in  tort  was  not  assignable,  at  least  so  as  to  enable 
the  assignee  to  sue  thereon,  at  law,  in  his  own  name.'*  Before 
the  section  was  amended  in  1851  by  adding  the  above  restriction, 
it  was  held,  that  the  Code  authorized  the  assignment  of 
[*111]  a  right  of  action  for  a  tort,  so  as  to  enable  *the  assignee 
to  sue."  [But  the  tort  may  be  waived  and  the  right  of 
action  assigned.*]  The  amendment,  it  has  been  supposed,  was 
intended  to  restrict  this  right,  and  to  establish  the  general  princi- 
ple that  nothing  but  a  cause  of  action  growing  out  of  contract 

'  WoXlme  V.  Eaton,  5  How.  Pr.  99 ;  297 ;   People  v.  Tioga  Com.  Pleas,  19 

report  of  com.  123, 124.  id.  73. 

i*  2  Sand.  Oh.  183.  ^  Kellogg  v.  Church,  3  Code  R.  39,  53. 

«  Tndp.  ii  111.  6  ifayjk  V.  TJwrn,  54  Barb.  Ifi4. 
*Oardii.e6    v.     Adams,    12     Wend. 

9 


66  PARTIES   TO   THE   AOTIOIST.  [CTf.  TT. 

could  be  assio'ued  so  as  to  give  the  assignee  such  an  interest  as 
would  enahle  him  to  enforce  his  demand  by  civil  action.' 

That  this  construction  is  incorrect  is  manifest.  The  section 
referred  to  does  not  "  authorize  "  the  assignment  of  a  thing  in 
action  not  arising  out  of  contract ;  neither  does  it  forbid  such 
assignment.  Consequently  the  right  rests  upon  precisely  the 
same  footing  as  it  did  before,  and  an  assignee  takes  precisely  the 
same  interest  in  the  assignment  of  every  species  of  demand, 
either  at  law  or  in  equity,  as  he  did  before  the  Code.  If,  there- 
fore, the  demand  was  such  as  was  capable  of  assignment  before 
the  Code,  so  as  to  carry  an  equitable  interest  to  the  assignee,  it  is 
such  a  demand  as  will  now  pass  by  assignment,  so  as  to  give  the 
assignee  a  right  of  action  thereon.  It  becomes  important,  there- 
fore, in  order  to  ascertain  who  may  be  a  proper  party  plaintifi'  in 
this  class  of  cases,  to  consider  what  demands  are  assignable. 

It  is  admitted,  on  all  hands,  that  a  mere  personal  tort,  such  as 
slander,  libel,  assault  and  battery,  false  imprisonment,  and  actions 
on  the  case  for  injuries  to  the  person  of  the  plaintiff,  or  to  the 
person  of  the  testator  or  intestate  of  any  executor  or  administra- 
tor, are  not  assignable."  They  die  with  the  person ;  no  action 
could  be  maintained  upon  them  by  the  personal  representatives, 
and  an  assignment  conveys  no  interest  to  the  assignee  which  can 
be  asserted  in  a  court  of  justice.  [These  are  the  only  exceptions 
made  by  the  statute.^]  But  torts  for  the  taking  and  con- 
[*112]  "^version  of  personal  property,  or  for  injury  to  personal 
property,  and,  generally,  it  seems  such  a  right  of  action 
for  a  tort,  as  would  survive  to  the  personal  representatives  of  the 
party,  may  be  assigned,  so  as  to  pass  an  interest  to  the  assignee 
which  he  can  assert  in  his  own  name,  in  a  civil  action,  under  the 
Code,  as  he  formerly  might  in  the  name  of  the  assignor  at  law. 
This  has  been  several  times  held  in  a  variety  of  well-considered 
cases  in  the  supreme  court.*  In  Jloyt  v.  Thomjpson,  in  the  court 
of  appeals,*  the  court  says,  "  all  choses  in  action,  embracing 
demands  which  are  considered  as  matters  of  property  or  estate, 

'  See  MerclianW  MnUtnl  Tnn.  Co.  v.  *  See  Ttohinmn  r.   Weeks,  fi  How.  Pr. 

JFa^i?/?.,  perSELDRN,.!.,  11  Le£^.  Oba.  140.  161;    Ilodf/mnn,  v.   WeMerii    Rnilrond 

■  2  R.  S.  447,  i;^  1,  2  ;  2  Edra.  St.  407.  Corporation,  7  How.  Pr.  493  ;  see,  a.so, 

»  ?yied  V.  JSf.  Y.  Cent.  E.  R.,  2~)  How.  Hall  v.  Rohinson,  2  Comst.  294. 

287;  Fay  v.  Troy,  etc.,  24  Barb.  383;  « 1  Seld.  347. 

Van  Rensselaer  v.  Owen.  48  id.  66. 


SEC.  II.]  OF    PARTIES    PLAINTIFF.  07 

are  now  assignable,  either  at  law  or  in  equity.  Nothing  is 
excluded  but  mere  personal  torts  which  die  with  tne  party.  A 
claim  therefore  for  property  fraudulently  or  tortiously  taken  or 
received,  or  wrongfully  withheld,  and  even  for  an  injury  to  cither 
real  or  personal  property,  may  be  assigned."  And  in  Hodgman 
V.  TJte  Western  Railroad  Corporation^  which  contains  a  very 
succinct  and  clear  exposition  of  the  law  on  this  subject  as  it  stands 
under  the  Code,  the  language  of  Judge  Story,  in  Comegys  v. 
Vassee^  1  Pet.  213,  is  quoted  with  approbation.  "  In  general,  it 
may  be  affirmed  that  mere  personal  torts,  which  die  with  the 
party,  and  do  not  survive  to  his  personal  representatives,  are  not 
capable  of  passing  by  assignment ;  and  that  vested  rights  ad  rem 
and  in  re,  possibilities  coupled  with  an  interest,  and  claims 
growing  out  of,  and  adhering  to,  property,  may  pass  by  assign- 
ment." 
[*113]  *  Thus,  a  widow's  right  of  dower,  before  admeasure- 
ment, Mdiich  it  has  been  repeatedly  held  was  not  assign- 
able,^ can,  under  these  rules,  it  is  presumed,  be  assigned  so  as  to 
pass  an  interest  which  the  assignee  may  assert  by  action  under 
the  Code.  So,  too,  rent  in  arrear  which  was  not  assignable  at 
law,'  may  now  be  assigned,  and  the  assignee  maintain  a  suit  upon 
it  in  his  own  name.     [So  the  expectancy  of  an  heir."] 

Though  prospective  demands  may  be  assigned  in  equity,^  yet  a 
mere  expectancy,  a  mere  jus  preoarium,  such  as  an  anticipated 
donation  from  the  government,  is  not  assignable  or  capable  of 
being  sold."  It  is  a  mere  possibility  not  coupled  with  an  interest. 
[Otherwise  as  to  extra  compensation,  which  may  be  subsequently 
allowed  a  contractor  for  work  already  done.'']  But  a  vested 
interest,  in  remainder,  in  personal  property,  though  liable  to  be 
defeated  by  a  future  event,  is  assignable.*  So,  too,  a  claim 
against  a  foreign  government  for  an  illegal  capture.*  In  the  late 
case  of  Field  v.  Mayor,  etc.,  of  New  York^"  the  court  of  appeals 

1  7  How.  Pr.  493.  ^  pi^i^  ^  Mayor, eU., of  Nm  York,2 

2  17  Johns.  167 ;  20  id.  411  ;  1  Barb.     Seld.  179. 

S.  C.  500.  «  Munsell  v.  Lewis,  4  Hill,  635. 

3  JDemarest  v.  Willard,  8  Cow.  206.  ■>  Munsdl  v.  Lcmii,  2  Den.  224. 

■*  Stover   V.    Eijcle shinier,   3    Keyes,        *  Lawrence  v.  Bayard,  7  Paige,  70. 
620,    affirming  46  Barb.  84  ;    see  Mr.        '  Conch  v.  Delaplaine,  2  Comst.  397. 
Hare's  note  to  Am.  ed.  McClellan  &        '0  2  Seld.  179. 
Younge's  Exch.  Rep.  101,  marq.  p.;  and 
2  Story's  Eq.  Jur.,  §§  1040  to  1040  h. 


68  PAETIES   TO   THE   ACTIOlSr.  [CH.  II- 

held,  that  an  assignment  for  a  valuable  consideration  of  demands, 
having  at  the  time  no  actual  existence,  but  resting  in  expectancy 
merely,  as,  for  example,  all  such  demands  as  might  become  due 
for  printing,  in  which  the  assignor  was  then  engaged  for  the  city 
of  New  York,  was  valid  in  equity.  Though  it  was  not  strictly 
an  assignment  in  jpresenti  of  a  chose  in  action,  because 
[*114]  it  was  not  yet  in  existence,  but  remained  *  in  possibility 
merely,  yet  it  was  a  valid  agreement,  and  would  take 
effect  as  an  assignment  when  the  demands  intended  to  be  assigned 
were  subsequently  brought  into  existence. 

An  entire  demand  may  be  assigned  in  parts  to  different  per- 
sons, and  the  assignee  of  a  portion  of  the  demand  will  have  his 
right  of  action  to  recover  such  portion.'  In  such  case,"  the  rule 
as  to  parties  under  the  Code  will  be  the  same  as  the  former  rule 
in  equity,  namelj^  that  the  assignees  of  other  portions  of  the 
demand,  and  the  assignor,  if  he  retained  any  portion,  should  be 
made  parties  defendants.  The  several  assignees  and  the  assignor, 
if  he  retain  a  portion  of  the  demand,  may  unite  to  recover  the 
entire  demand.  [But  the  assignment  of  a  mortgage  without  one 
of  the  bond,  carries  no  right  of  action  ;  ^  otherwise  as  to  a  chattel 
mortgage,  for  that  carries  the  title  to  the  property,  subject  to 
being  defeated  by  payment.*] 

In  all  cases,  therefore,  where  a  valid  demand  has  been  assigned, 
except  mere  personal  torts  which  do  not  survive  to  the  per- 
sonal representatives,  such  as  slander,  libel,  assault  and  bat- 
tery, false  imprisonment,  and  other  injuries  to  the  person,^  the 
action  is  to  be  brought,  and  a  recovery  had,  in  the  name  of  the 
assignee. 

[The  following  actions  have  been  held  assignable,  or,  what  is 
equivalent,  to  survive  in  favor  of  and  against  the  representatives 
of  parties  :  *  An  action  by  an  assignee,  in  trust  for  creditors,  for 
a  wrongful  taking  of  trust  property  by  a  sheriff  on  execution.^ 

'  2  Seld.  179  ;  HaM  v.  City  of  Buffalo,  •  Raymond  v.  Fitch,  2  Oromp.,  Mees 

1  Keves,  199.  &  Rose.  588  ;  Comegyx  v.  Vas.iee,  1  Pet. 

*  8  How.  Pr.  415  ;  1  Para,  on  Cont.  213  ;  Zabriskie  v.  Smith,  13  N.  Y.  335  ; 
(6th  ed.)  262  ;  2  id.  620,  note  b.  B^ctler  v.  N.  T.,  etc.,  22  Barb.  110. 

»  Merritt  v.  BarthoUck,  47  Barb.  253,  '  Emerson  v.  Bleakly,  2  Trans.  Ap. 
36  N.  Y.  45.  171,  173-170  ;  the  opinion  of  Pakker 

*  Campbell  v.  BnrcJi,  1  Lans.  178.  J.,  is  republished  in  3  id.  100. 

*  2  R.  S.  447.  SS  1.  2 ;  2  Edm.  St. 
467. 


SEC.   II.]  OF   PAIITIES   PLAINTIFF,  69 

It  has  been  held  that  an  action  of  replevin,  on  the  death  of  a  sole 
plaintijf,  can  be  revived ; '  if  so,  a  cause  of  action  in  replevin  can 
be  assigned,  if  the  defendant  therein  be  not  the  representative  of 
the  wrong-doer.  It  has  been  said,  also,  that,  upon  the  death  of  a 
sole  defendant,  the  action  cannot  be  revived,"  and  that  in  case  of 
the  death  of  a  sole  defendant,  in  such  action  the  remedy  of  the 
pai'ty  is  to  pursue  the  property  or.  to  bring  trespass  against  any 
one  interfering  with  it.'  If  the  proposition  be  sound,  if  a  party 
who  has  wrongfully  taken  j^roperty  die,  the  right  to  the  projjerty 
cannot  be  transferred  so  as  to  enable  the  assignee  to  bring  replevin 
against  his  representatives  without  a  new  demand  ;  *  or,  if  the 
assignment  transfer  all  the  assignor's  interest  in  the  property,  or 
for  its  conversion,  the  assignee  may  maintain  trover  for  its  con- 
version.* We  are  unable  to  see  by  what  system  of  reasoning  it 
can  be  claimed  that  a  defendant  who  wi'ongfully  detains  property 
from  a  plaintiff  is  not  prosecuted  for  a  "wrong  done  to  the 
property,  rights  or'  hiterests  of  another,"  and  it  may  be  doubted 
whether  the  cases  which  hold  that  an  action  of  replevin  cannot  be 
re\"ived  on  the  death  of  a  sole  defendant,  are  good  law.  It  seems 
to  us  the  court  overlooked  the  concluding  portion  of  the  first 
section  of  the  Revised  Statutes  above  cited ;  and  that,  as  was  said 
by  the  revisers,  quoted  by  Masten,  Justice,  in  Fried  v.  N.  Y. 
Central,  eto.^  "  the  exceptions  (in  §  2  of  the  R.  S.  above  quoted) 
"  are  all  that  should  be  made."  Suppose,  after  the  defendant  in 
replevin  has  given  the  proper  undertaking  and  obtained  posses- 
sion of  the  property  in  controversy,  and  after  "injury  to  or 
destruction  thereof,  he  should  die,  ought  the  plaintiff,  by  the  act 
of  God,  to  be  deprived  of  all  remedy  upon  the  undertaking  %  It 
is  true  it  has  been  held  that,  if  the  property  be  injured  or  de- 
stroyed by  inevitable  accident,  and  without  the  fault  of  the  party 
who  has  taken  it  in  legal  proceedings,  neither  he  nor  his  sureties 
are  liable  upon  the  undertaking ;' but  the  first  case  was  repu- 

'  Emerson  v.  Booth,  51  Barb.  40,  2        »  Burlde  v.  L\lcs,  1  N.  Y.  169-171  ; 

Trans.  App.  175  ;  Potter  v.  Van  Vran-  Yates  v.  Fassett,  5  Denio,  33. 
ken.m  N  Y.  619, 624 ;  Lahei/  v.  Brady,        *  Duell  v.  Cudlipp,  1   Ililt.  166  ;  but 

1  Daly,  443.  see  Waldron  v.  WiUnrd,  17  N.  Y.  466  • 

■^  Potter  V.  Van  VranTcen,  36  N.  Y.  McMaJion  v.  Allen,  35  id.  403. 
624, 639  ;  Webber  v.  TInderhill,  19  Wend.        ^  Duell  v.  Cudlipp,  1  Hilt.  168. 
447  ;    Lalwy   v.    Bradi/,  1    Daly,  443  ;         «  25  How.  287. 
Moneley  v.  Moxdey,  1 1  Abb.  105,  107  ;        ^  Carpenter  y.  Stevens,  12  Wend.  589 

Hopkins  V.  Adams,  5  id.  351.  Walker  v.  Osgood  53  Me.  422. 


70  PARTIES   TO   THE  ACTIOIST.  [CH.  II. 

diated  by  tlie  superior  court '  in  a  case  wliich  was  not  referred  to 
in  the  second.* 

If,  however,  such  an  action  could  not  be  revived  on  the  death 
of  a  sole  defendant^  the  right  to  the  property  could  be  sold  and  a 
new  action  brought  after  demand  if  one  were  necessary.^  An 
action  against  the  vendor  of  land  for.  fraudulent  representations 
as  to  an  incumbrance  survives.*  So  any  action  for  false  and 
fraudulent  representations  whereby  the  estate  of  him  to  whom 
they  are  made  is  injured.*  And  an  action  for  negligently  setting 
fire  to  and  burning  up  grass  and  fences.' 

The  following  actions  have  been  held  to  be  assignable  or  to 
survive : 

An  interest  in  personal  property  or  a  possibility  coupled  with  an 
interest  in  real  estate  —  as  a  life  estate  charged  with  the  support  of 
infants  ;^  a  claim  against  a  foreign  government  for  indemnity  on 
account  of  an  illegal  capture  ;*  a  claim  against  the  government  for 
services  subsequently  required  by  the  legislature  to  be  paid;*  for 
an  injury  occasioned  by  negligence  or  a  breach  of  duty ;'"  for  neg- 
ligence causing  death  of  persons,"  or  animals ;'"  against  a  canal 
contractor  for  failure  to  remove  obstructions ;"  for  goods  lost  by  a 
carrier,**  or  by  an  innkeeper;'*  a  sherifi''s  right  of  action  against 
bail ;"  the  obligee's  interest  in  a  replevin  bond ;"  a  guaranty.'* 

A  license  to  use  a  patented  article ;"  an  action  for  money  had 
and  received ;''°  against  an  agent  for  converting  funds  intrusted  to 
him  ;"'  fees  earned  by  an  officer,  but  not  those  to  be  earned ;"  an 

'  Suydam  v.  Jenkins,  3  Sandf .  643,  '"  Dininny  v.  Fay,  38  Barb.  18. 

645.  "  Q^iin  V.  More,  15  N.  Y.  432. 

«  See,  also,  Fried  v.  N.  T.  G.  R.  R.,  '^  Butler  v.  JSf.  Y.,etc.,  22  Barb.  110. 

25  How.  286, 288  ;  Foy  v.  2roy,  etc.,  24  "  pulton,  etc.,  v.  Baldwin,  37  N.  Y. 

Barb.  382.  648,  and  see  Robimon  v.  Chamberlain, 

3  Hall  V.  Robinson,  2  N.  Y.  293  ;  Letcis  34  id.  389. 

V.  Mott,  36  id.  402 ;  Jessop  v.  Miller,  1  '■»  McFee  v.  Judd,  12  N.  Y,  622  ;   Wal- 

Keves,  328 ;  Buelly.Cudlipp,  lB.\lt.W6.  dron    v.    Willard,    17    id.   466;    Van 

^Haight  v.  JETayt,  19  N.  Y.  464, 474.  Ren.sselaer  v.  Oioen,  48  Barb.  66. 

^Johnston  v.  Bennett,  5  Abb.  N.  S.  ^^Stantonv.  Leland,  4  E.D.  Smith,  88. 

331 ;  Fried  v.  N.  Y.  Cent.  R.  R.  Co.,  25  '«  Clapp  v.  Schutt,  29  How.  255. 

How.  285,  286,  disapproving   on  this  "  Acker  v.  Finn,  5  Hill,  293. 

point,  Zabriskie  v.  Smith,  13  N.  Y.  322  ;  "*  Smnll  v.  Sloan,  1  Bosw.  352. 

Markey  v.  Mackey,  43   Barb.  60;  see  "  Wilson  v.  Stolli/,'iMcL('-A\\,l. 

Atwill  V.  Le  Roy,  4  Abb.  439.  '">  Piatt  v.  Stout,  14  Abb.  178. 

6  Fi-ied  V.  N.  7.  Cent.  R.  R.,  25  How.  ^i  g^^y^i^  v,  Gould,  36  Barb.  270,  41 

285.  id.    654,   affirmed   by  default,   41    N 

'  Emmons  v.   Cairns,  3  Barb.  243 ;  3  Y.  619. 

Barb.  Cli.  350.  ^^Birbeck  v.  Stafford,  23  How.  236,  U 

^  Couch  V.  Delaplaine,  2  N.  Y.  397.  Abb.    285  ;    McCoun    v.    Dorsheimer 

» Milnor  v.  Metz,  16  Pet.  221.  Clarke's  Cli.  144. 


SEC.  II.]  OF   PAETIES   PLAINTIFF.  71 

agi'eement  to  sell  and  deliver  goods  ;*  a  claim  for  services ;"  for 
breach  of  an  agreement  to  employ  the  assignor  f  the  right  to 
recover  money  lost  in  betting;^  for  misapplying  funds  of  a  cor- 
poration ;'  for  the  conversion  of  personal  property ;'  a  claim  for 
town  bounty ;'  for  moneys  received  by  an  agent  ;*  for  fraud  in 
obtaining  a  deed,  so  as  to  enable  the  assignee  to  set  it  aside ;' 
property  subject  to  an  usurious  lien,  so  as  to  confer  a  right  to 
avoid  it  for  the  usury  ;"  a  contract  for  the  labor  of  convicts  in  a 
State  prison." 

Tlie  following  are  not  assignable. 

The  right  to  the  service  of  an  apprentice,"  for  the  apprentice  is 
not  bound  to  serve  the  executor  of  his  master,  after  his  master's 
death  ;"  although,  if  the  apprentice  actually  labor  for  the  assignee, 
the  law  does  not  imply  a  promise  to  pay,'*  and  he  will  gain  a 
settlement  under  such  an  assignment."  A  right  of  action  for  the 
seduction  of  a  servant  is  not  assignable  ;'*  the  real  gravamen  of  the 
action  is  not  the  loss  of  service,  but  the  mortification  and  dis- 
grace of  the  family  and  the  wounded  feelings  of  the  plaintiff ;" 
neither  is  an  action  for  breach  of  contract  to  marry  ;'*  nor  a  claim 
against  a  justice  of  the  peace  to  recover  back  money  paid  to  him 
on  an  illegal  and  excessive  fine  imposed  by  him."  The  question 
as  to  whether  a  cause  of  action  is,  or  is  not  assignable,  depends  upon 
the  nature  of  the  claim  ;  and  allegations  which  are  not  material 

'  Tyler  v.  Barrows,  6  Rob.  104 ;  Sears  is    contrary  to   the  latter  cases.     See 

▼.  Conover.'B  Keyes,113.  Moak's  note,   Clarke's  Ch.  494,  marg. 

2  Field  V.  Mayer,  6  N.  Y.  179.  p. 

3  Monahan  v.  Story,  2  E.  D.  Smith,  >'  Horner  v.  Wood,  23  N.  Y.  350, 
393.  355. 

*  McDougall  v.  Walling,  48  Barb.  '^  Ouilderland  v.  Knox,  5  Cow.  367  , 
364 ;  Meech  v.  Stoner,  19  N.  Y.  26  ;  1  Pars,  ou  Cont.  (5th  ed.)  228,  citing  1 
Hendrickson  \.  Beers,  6  Bosw.  639  ;  the  Mass.  172  ;  8  id.  299  ;  8  N.  H.  472  ;  11 
case  of  Weyburn  v.  White,  22  Barb.  82,  B.  Monr.  60,  and  see  1  Pick.  23. 

is  not  good  law.  ^^Pearce  v.  Chamberlain,  2  Vesey  Sen. 

^  Grocers'  Bank  v.  Clarke,  48  Barb.  35  ;  Reeves's  Dom.  Rel.  345. 

26,  32  How.  160.  "  Williams  v.  Finch,  2  Barb.  208. 

*  Richt7nyer  v.  Remson,  38  N.  Y.  206.  ^^  Guilderland  v.  Knox,  5  Cow.  363. 
'  Carver  v.  Creque,    46    Barb.    507 ;  '^  Howard  v.  Crowther,  8    Mees.   & 

People  ex  rel.  Tales  v.  Board  of  Toion  Welsh. '  601 ;    George  v.  Van  Horn,  9 

Auditors  of  Canajoharie,  M.   S.  Gen.  Barb.  523. 

Term,  4th  dist.,  Schenectady,  April  7,        '''  Badgley  v.  Decker,  4A  Barb.  577. 
1868.  ^^StebUns    v.   Palmer,   1  Pick.   71; 

*  Allen  V.  Brown,  51  Barb.  86.  Smith  y.  Sherman,  4  Cush.  408  ;  2  Pars. 
9  McMahon  v.  Allen,  35  N.  Y.  403.    '  on  Cont.  (5th  ed.)  70. 

•"  Billiard  v.  Rayner,  30  N.  Y.  200  ;        '«  Clark  v.  Holdridge,  40  How.  320 
Berdan  v.  Sedgwick,  40  Barb.  359  ;  the 
case  of  Boughton  v.  Smith,  26  Barb.  635, 


T..I  PAKTIES   TO   THE  ACTIOTf.  [CH.  II. 

to  I  lie  cause  of  action^  do  not  render  it  assignable  or  non-assign- 
able.'    As  to  wliat  actions  survive,  see  further,  post  (marginal), 

page  146,  et  seq. 
[-115]  *  The  party  prosecuting  the  suit  must  be  the  real  party 
in  interest.  Thus,  where  a  bank  sued  upon  a  draft  paya- 
ble to  the  order  of  its  cashier,  and  the  complaint  alleged  that  it 
was  delivered  to  the  said  cashier  "for  the  said  bank,"  it  was  held, 
on  demurrer,  that  the  complaint  was  good,  and  that  the  suit  was 
properly  instituted  in  the  name  of  the  bank.*  So,  in  an  action  on 
a  policy  of  insurance  eifected  upon  the  plaintiff's  property  by  his 
agent,  containing  a  clause  that  the  loss,  if  any,  should  be  paid  to 
the  agent,  it  was  held,  that  the  owner  of  the  property,  being  the 
real  party  in  interest,  might  maintain  the  action.*  [The  peo- 
ple of  the  State  have  no  right  to  maintain  an  action  to  restrain 
town  commissioners  from  subscribing  for  stock  of  a  railroad  com- 
pany and  issuing  the  bonds  of  the  town.*] 

Under  the  former  equity  practice,  it  was  held,  by  the  chancel- 
lor, that  the  assignee  of  a  chose  in  action  who  is  but  a  nominal 
owner,  could  not  sue  in  equity,  but  the  suit  must  be  brought  by 
the  real  party  in  interest.*  Though  Judge  Stoky  thinks,  that  this 
doctrine  should  receive  qualifications  in  certain  cases,  as,  for 
example,  where  the  assignee  holds  a  nominal  interest  as  trustee, 
etc.,'  yet,  with  this  exception,  it  is  doubtless  generally  applicable 
to  our  present  system. 

The  holder  of  a  promissory  note  is  presumed  to  be  the  owner 
and  real  party  in  interest  within  the  meaning  of  the  Code.  The 
production  of  the  note  and  proof  of  the  signature  of  the  maker 
and  indorser  is  sufficient,  without  showing  value  given,    even 

though  the  note  was  received  after  due.' 
[*116]  *  In  an  action  on  the  official  bond  of  a  town  superintend- 
ent of  common  schools,  given  to  the  supervisor  or  his 

^ByxUe   v.    Wood,  24   N.    Y.   607;  *  People  v.   Clarke,  53  Barb.    173; 

Union  Bank  v.   Bush,  36   N.  Y.  636  ;  People  v.  Mayor,  27  How.  34. 

Brady  \.  Bmell,  1  Abb.  76  ;  French  v.  ^  Rogers  y.  Traders'  Ins.  Co.,  6  Paige, 

White,  5  Duer ,  254,  and  see  Atwell  v.  597 ;  Field  v.  Maghee,  5  id.  539. 

Leroy,  4  Abb.  438,  and  Hare  &  Wal-  «  Story's  Eq.  PI.,  §  152,  note, 

lace's  note  to  Drake  v.  Beckham,   11  '  James  v.    Chalmers,  5  Sand  52 ;  6 

Mees.  &  Welsb.  319.  N.  Y.  209 ;  MottramY.  Mills,  1  Sand.  37; 

*  Camden  Bank  v.  Badgers,  4  How.  Reznor  v.  Webb,  36  How.  353. 
Pr.  64. 

"  Lane  v.  Columbus  Ins.  Co.,  2  Code 
E.  65. 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  '        73 

successor  in  office,  a  subsequent  town  superintendent  of  common 
schools  is  not  the  real  party  in  interest  within  the  meaning  of  sec. 
Ill  of  the  Code,  but  the  action  must  be  brought  by  the  supervisor.* 

The  eifect  and  operation  of  section  111  of  the  Code  was  con- 
sidered by  Justice  Selden  in  the  case  of  Merchants'  Mutual 
Ins.  Co.  Y.  Eaton^  in  which  the  rule  was  laid  down,  that  the 
section  was  not  designed  to  convert,  in  all  cases,  a  mere  equitable 
into  a  legal  title,  so  as  to  enable  the  party  holding  such  claim  to 
assert  it  by  action  as  in  the  case  at  bar ;  where  an  insurance  com- 
pany, which  had  been  compelled  to  pay  for  damages  for  goods 
insured  on  a  canal  boat,  brought  an  action  to  recover  such  dama- 
ges against  the  owners  of  another  boat  committing  the  injury. 
It  was  denied  in  that  case  that"  the  section  under  consideration 
was  designed  to  apply,  in  all  cases,  the  rules  in  relation  to  parties 
which  formerly  obtained  in  courts  of  equity.  Its  principal,  if 
not  its  whole  design,  was  thought  to  be  to  authorize  a  suit  at  law 
in  the  name  of  an  assignee  of  a  chose  in  action,  and  thus  to 
abrogate  the  rule  of  the  common  law  which  renders  such  things 
unassignable.  "In  order  to  bring  a  case  within  section  111," 
says  the  court,  "  there  must  be  an  assignment  in  fact.  An  obli- 
gation to  assign,  or  a  state  of  circumstances  which  would 
[*117]  operate  to  transfer  the  equitable  ^interest  in  the  thing  in 
action,  will  not  be  sufficient.  There  must  be  that  done 
which,  before  the  Code,  would  have  passed  the  legal  title,  but  for 
the  rule  which  denied  the  assignability  of  such  an  interest." 

Section  111  further  provides  that  "  An  action  may  be  main- 
tained by  a  grantee  of  land,  in  the  name  of  a  grantor,  or  his  or 
her  heirs  or  legal  representatives,  when  the  grant  or  grants  are 
void  by  reason  of  the  actual  possession  of  a  person  claiming  under 
a  title  adverse  to  that  of  the  grantor  at  the  time  of  the  delivery 
of  the  grant,  and  the  plaintiff  shall  be  allowed  to  prove  the  facts 
to  bring  the  case  within  this  provision."  [Under  this  provision 
an  action  may  be  brought  by  a  grantee  in  the  name  of  his  grant- 
or without  his  consent  f  and  the  grantor  is  liable  for  the  costs  of 
the  action  if  it  be  unsuccessful.*] 

Except  in  abrogating  the  rule  of  the  common  law,  namely,  that 

>  Fuller  V.  Fkillerton,  14  Barb.  59.  »  Lmcber    v.    Kelly,    17   Abb.    452, 

«  11  Leg.  Obs.  140.  affirmed,  9  Bosw.  494. 

*  Hamilton  v.  Wright,  37  N.  Y.  533. 

10 


74  PAETIES   TO   THE  ACTION".  [CII.  II. 

courts  of  common  law  will  not  in  general  notice  mere  equitctble, 
as  contradistinguished  from  the  strict  legal  title  and  interest,  so 
as  to  invest  the  equitable,  or  merely  beneficial,  claimant  with  the 
ability  to  adopt  legal  proceedings  in  his  own  name,  the  Code  has 
not,  so  far  as  I  have  been  able  to  discover,  interfered  with  these 
established  principles  and  rules  relative  to  parties  plaintiii',  which 
heretofore  applied  to  common-law  actions.  Indeed,  with  this 
exception,  I  do  not  see  any  essential  difference  in  principle 
between  the  rules  which  heretofore  governed  a  legal  and  an 
equitable  action,  so  far  as  related  to  the  party  who  should  prop- 
erly prosecute  the  suit.  The  heneficial  claimant,  or,  in  the  lan- 
guage of  the  Code,  the  "  real  party  in  interest "  was  the  proper 
party  plaintiff.  Thus,  an  action  against  a  carrier  for  the  loss  of 
goods  sent  by  a  vendor  to  a  vendee,,  must  in  general  be  brought 
in  the  name  of  the  latter,  and  not  of  the  consignor ;  because  the 
law  imjjlies,  that,  by  the  delivery  to  the  carrier,  the  goods  become 
the  property  of  the  vendee,  and  at  his  risk.'  [But  a  consignor  who 
makes  a  special  contract  with  the  carrier  may  recover  thereon.']  So, 
too,  as  in  the  case  under  the  Code  just  cited  of  Lane  v.  Cokimhus 
Ins.  Co.,^  a  mere  servant  or  agent,  with  whom  a  contract  is  expressed 

to  be  made  on  behalf  of  another,  and  who  has  no  direct  bene- 
[*118]  ficial  interest  in  the  transaction,  cannot  *support  an  action 

thereon."  But  when  such  agent  has  any  beneficial  interest 
in  the  performance  of  the  contract,  as  for  commission,  etc.,  or  a 
special  property  or  interest  in  the  subject-matter  of  the  agree- 
ment, as  in  case  of  a  factor  or  broker,  or  a  warehouseman  or  car- 
rier, he  may  support  an  action  in  his  own  name.^  The  rule  as  to 
all  manner  of  torts,  as  for  injuries  to  the  person,  or  to  personal 
or  real  property,  was  the  same.  The  beneficial  claimant,  that  is, 
the  party  who  had  sustained  the  injury,  and  who  was  entitled  to 
the  damages  recovered,  was  the  proper  party  to  prosecute  the  suit. 
And  so  also  in  regard  to  actions  to  recover  real  or  personal  prop- 
erty, the  beneficial  claimant  in  the  subject-matter  of  the  contro- 

1 1  Chit.  PI.  6  ;  Krulder  v.  Ellison,  » 1  T.  R.  112 ;  2  Esp.  493 ;  11  East. 

47  N.  Y.  36  ;  2  Saunders'  Notes,  ed.  180 ;  1  Chit.  PI.  7,  8 ;  Kellogg  v.  Swee- 

1871,  p.  119.  ney,!  Laus.  397;  El4ridge  v.  Adams 

2  27  Wise.  81.  54  Barb.  417;  Fitzhugh   v.   Wiman,  9 

3  2  Code  R.  65.  N.  Y.  559. 
*%  Joiins.  94;  10  id.   387;  6  Mass. 

491 ;  10  id.  362 ;  Rose  v.  U.  S.,  etc.,  34 
How.  308. 


SEC.  II.]  OF   PARTIES   PLAIMIFF.  75 

versy,  namely  tlie  possession  of  the  land,  or  chattels,  was  the 
proper  party.  The  party  having  the  right  to  the  immediate  j^os- 
session  was  the  real  party  in  interest,  and  was  entitled,  then  as 
now,  to  adopt  legal  proceedings  to  enforce  such  right.  In  the 
case  of  replevin,  or  an  action  to  recover  personal  property,  or 
trover  and  the  like,  this  right  did  not  attach  unless  the  plaintiff, 
at  the  time  of  the  injury,  had  either  a  general  or  special  property 
in  the  goods  taken.^  Thus  a  deposit  by  a  person  who  himself 
had  no  property  in  the  goods  did  not  give  the  depositary  a  right  to 
replevy  them,  nor  could  a  mere  servant  who  has  charge  of  goods, 
as  such,  maintain  replevin.  There  must  be  some  special  property, 
some  beneficial  interest  therein,  otherwise  the  general 
[*119]  *owner  alone  could  sue  for,  or  recover  the  property." 

[The  purchaser  of  a  note,  who  is  not  to  pay  for  it  until  col- 
lection, is  the  real  party  in  interest.'  It  is  not  necessary  the  assignee 
should  pay  any  thing  for  the  assignment."  If  the  assignment  is 
valid  as  between  assignor  and  assignee,  so  that  the  former  is 
divested  of  all  control  and  right  to  the  cause  of  action,  and  the 
latter  is  entitled  to  control  it  and  receive  its  fruits,  the  assignee  is 
the  real  party  in  interest ;'  and,  if  in  writing,  it  is  doubtful  whether 
parol  evidence  is  admissible  to  contradict  it ;"  it  is  good,  although 
the  assignor  have  no  right  to  sue  upon  the  cause  of  action  in  this 
State.'  Either  the  general  owner  or  a  bailee  may  sue  a  stranger 
for  injury  to,  or  conversion  of,  the  subject  of  the  bailment ;'  and 
ordinarily  the  bailee,  as  against  a  stranger,  may  recover  the  full 
value  of  the  property  ;'  otherwise  where  a  pledgee  sues  the  owner, 
or  one  claiming  under  him,  for  the  injury  to  his  special  property.'' 
1 1  Q\^\i  PI  187  Brotm  v.   Penfield,   36  id.  475 ;    City 

^  Harrison  y.  Mcintosh,  1  Johns.  380 ;    Bank  v.  Ferkins,  29  id.  554 ;  Wilhams 
Harris  v.  SmitJi,  1  Serg.  &  Rawle,  20;    v.  Brown,  2  Keyes,  488.  ,    qo  at 

1  Chit.  PI.  170, 187.  °  Peterson  v.  Chemical  Bank,  6^  JN, 
»'  Cummings  v.  Morris,  3  Bosw.  560,    Y.  47,  51.  ,   t,     ?    oe  t>j 

25  N.  Y.  625  ;  substantially  overruling  '  McBride  v.  Farmers   Bank,  Zb  ^. 

KUlmore  v.  Culver,  24  Barb.  656  ;  and  Y.  450  ;  Peterson  v.  Chemical  Bank,  6Z 

Bee  Allen  Y.Brotcn,  olid.  86;  Terbyy.  id.  47,  51. 

Kirkmatrick,  2   Rob.  229.    The  word  ^Greene  v.    C'W,  1^   iN.    i.   ^^o , 

"  not "  should  be  inserted  in  the  second  Bowen  v.  Fenner,  40  Barb   dOo  ;  ±sass 

head-note,  between  "had  "and  "such,"  v.    Pierce,    16    id     595;    Paddock    v. 

in  the  first  line.  Wing,  16  How.  547  ;  Aellogg  v.  Sweeny. 

*  Richardson  v.  Mead,  27  Barb.  178  ;  1  Lans.  397.                 o^  xr  v  oqq  .  >,„. 
Kelly  V.  Campbell,  1  Keves,  29;  Merrick  '  Buck  v.  Eemsen,  34  N.  Y.  o83  ,  but 
V.  L'rainard.h  Barb.  575;  Vogil  v.  Bad-  see  Eldridge  v.  Adams,  54  Barb.  417 
cock,  1  Abb.  176  ;  Burtnett  v.  Owynne,  '«  Sedg.  on  P^m-^^tl^^eJ  )  563  ;  6 had-- 

2  id.  79  ;  Allen  v.  Brown,  51  Barb.  86.  toick  v.  Lamb,  29  Barb  518;  btory  on 

*  Cummings  v.  Morris,  25  N.  Y.  627  ;    Bailment  (7th  ed.),  §  35x5. 


76  PARTIES   TO   THE   ACTION.  [CH.  II. 

It  would  be  proper  for  a  defendant,  when  the  action  is  by  a  bailee 
or  by  the  general  owner,  where  a  bailee  has  an  interest,  to  insist, 
by  answer  or  otherwise,  upon  both  being  brought  in  as  parties. 
If  the  general  owner  of  property  pledged  sue  a  wrong-doer,  he 
is  entitled  to  recover  its  full  value,  without  reference  to  the  pledge, 
for  he  is  liable  to  the  pledgee  for  the  debt  and  can  have  but  one 
action  for  the  tort.*  Although  his  recovery  would  not  probably 
bar  a  recovery  by  the  pledgee,  for  the  injury  to  his  special  prop- 
erty, else  a  recovery  by  a  worthless  owner  would  destroy  it."  The 
defendant,  after  judgment,  can  protect  himself  from  a  double 
payment  by  a  motion  to  stay  collection  of  so  much  of  it  as  is 
represented  by  the  special  property  of  the  pledgee.  The  court 
has  a  right  to  so  control  its  judgments  as  to  prevent  injustice 
being  done  thereby.*  If  one  give  a  note  to  A,  for  the  benefit  of 
B,  A  is  a  trustee  of  an  express  trust.*] 

These  rules  seem  to  me  to  be  fully  applicable  to  the  system  of 
pleading  adopted  by  the  Code.  The  henefioial  claimant  is  the 
"  real  party  in  interest "  within  the  meaning  of  the  Code.  And 
in  all  cases  under  the  old  common-law  system  of  pleading,  where 
the  right  of  the  party  to  sue  was  made  to  rest  upon  the  fact  of 
his  having  such  heneficial  interest,  the  well-settled  rules  govern- 
ing parties  plaintiff,  apply  to  the  Code.^  A  further  examination 
of  these  rules  would  lead  me  beyond  the  limits  marked  out  for 
this  work.  They  may  be  conveniently  consulted  by  the  student 
in  the  various  standard  works  on  common-law  pleading.* 

As  to  the  joinder  of  plaintiffs.  The  rules  adopted  by  the 
Code  in  regard  to  the  joinder  of  parties  to  the  action,  are  gener- 
ally those  which  heretofore  prevailed  in  courts  of  equity.  The 
general  rule  in  equity  is  stated  by  Lord  Hardwicke  to  be  that 
"all  persons  ought  to  be  made  parties  before  the  court,  who  are 

'  Green    v.    Clark,  12    N.  Y.    343,  proper  parties,  consult  Story's  Eq.  PI. 

352 ;  Story  on  Bailments  (7tli  ed.),  §  352.  §  136,  et  seq. ;  Dan.  Cli.  Pr. ;  Barb.  Ch. 

2  Hnxhrouck  v.  Lounsbury,  26  N.  Y.  Pr.  ;  Barb,  on  Parties  ;  Kerr  on  Frauds 
598;  Stury   on   Bailments   (7tb  ed.),  §  (Eug.  ed.)  303-315  ;  Kerr  on  Inj.  (Eng. 

3  26  How.  394  ;  45  Barb.  120 ;  1  ed.)  207,  208 ;  Estee's  PI.  an^  Forms ; 
352  Add.  on  Torts  ;  Adams's  Eq. ;  Story's 
Keyes,  65;  38  N.  Y.  70 ;  2  Am.  Law  Eq. ;  Burr.  Pr.;  Gra.  Pr.;  Rob.  Pr.;  Till. 
Times,  U.  S.  Courts  Rep.  188.  &  Shear.  Pr. ;  N.  Y.  Pr.  ;  Voor.  Anno. 

*  licznor  V.  Webb,  36  How.  353.  Code,  and  works  upon  the  particular 

*  Ilutehins  v.  i^ith,  46  Barb.  235.    subject  desired.] 
[*As  to  who  are  necessary  and  who  are 


SEC.  II.]  OF  PARTIES   PLAINTIFF.  77 

necessary  to  make  the  detci  liiination  complete."  Lord  Eldon 
lays  down  the  rule,  "  that  all  persons  materially  interested  in  the 
subject  of  the  suit,  however  numerous,  ought  to  be  parties,  that 
there  may  be  a  complete  decree  between  all  parties  haviiig 
material  interests."  Sir  William  Geant  says :  "  In  equity  it  i? 
sufficient  that  all  parties  interested  in  the  subject  of  the  suit 

should  be  before  the  court,  either  in  the  shape  of  plaiu- 
[*120]  tiffs  or  defendants."     *Judge  Stoey,  while  intimating  a 

better  exposition  of  the  general  rule  to  be,  "  that  all  per- 
sons interested  in  the  object  of  the  suit  ought  to  be  made  parties," 
very  properly  remarks,  that  the  rule  does  not  seem  to  be  founded 
on  any  positive  and  uniform  principles ;  and  therefore  it  does  not 
admit  of  being  expounded  by  the  application  of  any  universal 
theorem  as  a  test} 

"Without  pursuing  these  definitions  further,  I  shall  proceed  to 
a  consideration  of  the  provisions  in  the  Code  relative  to  parties, 
which  seem  to  be  founded  on  these  general  definitions,  and  cer- 
tain other  well-recognized  principles  of  equity  pleading,  which 
will  be  hereafter  noticed,  merely  premising  that  the  Code  appar- 
ently has  undertaken  to  do  what  Judge  Stoey  intimates  the  former 
equity  system  did  not  do,  namely,  establish  certain  general  ruleSj 
to  be  applied,  in  all  cases,  as  an  universal  theorem  or  test.  These 
rules  are  as  follows : 

"  All  persons  having  an  interest  in  the  subject  of  the  action,  aud 
in  obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs,  except 
as  otherwise  provided  in  this  title."  "^ 

And  again: 

"  Of  the  parties  to  the  action,  those  who  are  united  in  interest 
must  be  joined  as  plaintiffs  or  defendants ;  but  if  the  consent  of  any 
one  wlio  should  have  been  joined  as  plaintiff  cannot  be  obtained,  he 
may  be  made  a  defendant,  the  reason  thereof  being  stated  in  tlie 
complaint;  and  when  the  question  is  one  of  a  common  or  general 

inteiest  of  many  persons,  or  when  the  parties  are  very 
[*]21]  numerous,  and  it  may  be  impracticable  to  bring  *  them  all 

before  the  court,  one  or  more  may  sue  or  defend  for  the 
benefit  of  the  whole."  ^ 

And  again : 

"The  court  may  determine  any  controversy  between  the  parties 
before  it,  when  it  can  be  done  without  prejudice  to  the  rights  of 

'  Story'8  Eq.  PI.,  §  76  and  notes.  »  Code,  8  119. 

«  Code,  g  117. 


78  PARTIES   TO   THE   ACTIOlSr.  [CH.  II. 

others,  or  by  saving  their  rights ;  but,  when  a  complete  determina- 
tion of  the  controversy  cannot  be  had  without  the  presence  of  other 
parties,  the  court  7nust  cause  them  to  be  brought  in.  And  when, 
in  an  action  for  the  recovery  of  real  or  personal  property,  a  person, 
not  a  party  to  the  action,  but  having  an  interest  in  the  subject 
thereof,  makes  application  to  the  court  to  be  made  a  party,  it  may 
order  him  to  be  brought  in  by  the  proper  amendment."' 

It  was  said  by  Justice  Mason,  in  the  case  of  Wallace  v.  Eato7i, 
and  others,"  that  the  section  last  above  quoted  was  the  controlling 
section  in  determining  whether  a  demurrer  for  want  of  proper 
parties  would  lie.  "  If  the  court,"  he  says,  "  can  determine  the 
controversy  before  it  without  prejudice  to  the  rights  of  others,  or 
by  saving  their  rights,  then  a  demurrer  for  non-joinder  of  such 
parties  is  not  well  taken.  If,  on  the  contrary,  a  complete  deter- 
mination of  the  controversies  cannot  be  had  without  the  presence 
of  other  parties,  then  the  demurrer  is  well  taken,  and  the  court 
should  order  them  to  be  brought  in  by  amendments  of  the  plead- 
ings."^ The  same  justice  quotes  from  the  remarks  of  the  commis- 
sioners on  this  subject,  as  indicating  a  rule  of  construction  of 
these  sections,  as  follows :  "  We  have  intended  to  leave  suitors 
very  much  at  liberty  to  choose  whom  to  make  defendants^  and 
whom  to  join  as  plaintiffs.  No  person  can  be  aifected  by  a 
judgment  but  a  party,  or  one  who  claims  under  him.  This  rule 
wall  make  the  plaintifl'  bring  in  all  the  parties  whom  he 
[*122]  wishes  to  affect.  The  judgment,  *as  w^e  have  seen  by 
section  161  (now  section  274),  can  be  given  for  or  against 
any  one  or  more  of  the  plaintiffs  or  defendants." 

It  must  be  evident,  however,  that  so  loose  a  rule  of  construc- 
tion as  seems  to  be  indicated  by  these  remarks,  cannot  be  correctly 
or  safely  applied  as  a  general  rule,  at  least  in  regard  to  the  joinder 
oi  ^BxtiQ?,  plaintiff .  If,  indeed,  this  explanation  of  the  commis- 
sioners is  entitled  to  any  weight  in  the  construction  of  the  statute, 
it  should  be  taken  in  connection  with  what  was  said  by  them,  to 
be  one  of  the  three  main  purposes  in  view,  namely :  "  To  require 
the  presence  of  such  parties  as  are  necessary  to  make  an  end  of 
the  controversy  /"  *  in  other  words,  that  the  necessary  parties,  at  all 
events,  must  be  before  the  court,  and,  by  allowing  a  demurrer  for 
a  defect  of  parties,  this  view  of  the  subject  is  confirmed. 

'  Code,  §  122.  «  See  post,  cli.  vii,  §  3. 

«  5  How.  Pr.  99.  ■•  Rep.  of  Com.  121. 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  "79 

The  rules  prescribed  and  recognized  by  tlie  supreme  court  of 
the  United  States  for  the  practice  in  equity  cases  are  ^^-^]^'^^^ 
xnany  respects  to  these  provisions  of  the  Code.  It  is  hold  .n  that 
court  that  as  a  general  rule  all  persons  in  interest  must  be  made 
parties  before  a  decree,  but  no  one  need  be  made  a  P-tj  agams 
^hom,  if  brought  to  a  hearing,  there  can  be  no  decree.  No  one 
need  be  made  a  party  complainant  in  whom  there  exists  no  mterest, 
and  no  one  a  party  defendant  from  whom  nothmg  is  demanded 

All  persons  materially  interested  in  the  matter  ot  a  bill, 
rn231  as  plaintiifs  or  defendants,  ought  to  *be  made  parties  to 
it  however  numerous  they  may  be ;  but  there  are  excep- 
tions to  ihe  rule,^  and  it  should  be  restricted  to  pai^ties  whose 
interests  are  in  the  issue,  and  to  be  affected  by  the  deci-ee.      I 
the  parties  are  very  numerous,  and  it  is  difficult  to  brmg  them  all 
in,  or  the  question  is  of  a  general  interest,  and  few  may  sue  lor 
the  whole,  then  the  plea  of  want  of  proper  parties  will  not  be 
sustained,  but  the  other  parties  may  afterward  come  in  and  have 
a  rehearing.^     This  doctrine,  upon  which  is  based  one  of  the  pro- 
visions of  the  Code  above  mentioned,  is  very  fully  discussed  m 
WestY.Bandall  et  aU  and  a  variety  of  cases  cited  m  illustration; 
as  for  example,  legatees  seekhig  relief  and  an  account  against 
executors,  may  lue  in  behalf  of  themselves  and  all  other  interested 
persons,  when  placed  in  the  same  predicament  as  creditors      bo 
in  the  common  case  of  creditors  suing  on  behalf  of  the  rest  and 
seekino-  an  account  of  the  estate  of  their  deceased  debtor  to  obtain 
payment  of  their  demands.     So  also  of  another  class  ot  cases, 
where  a  few  members  of  a  voluntary  society,  or  an  unincorpo- 
rated body  of  proprietors,  have  been  permitted  to  sue  m  behalt 
of  the  whole,  seeking  relief  and  an  account  against  their  own 
agents  and  committees.     So,  also,  in  suits  brought  by  part  ot  a 
privateer's  crew  for  prize  money;  if  the  suit  be  m  behalf  ot 
themselves  only  it  will  not  be  sustained  ;   but  it   must  be  m 

behalf  of  themselves  and  the  rest  of  the  crew.         _ 
[*124:]       *The  rule  of  the  Code,  in  regard  to  taking  objections  tor 

1  Sum  173  •  9  meat.  73.3  ;  1  Gal.  371.        «  Id.  ;  ^«f ''^f  |^--  ^^39^'  ^  ^"*-  *^^ ' 
.  6  meat.'550 ;  1  Pet.  299  ;  1  Wash.     alBO^rules^47  and  4a 


F\1  7 

8  'West  V.  Randall  et  al,  2  Mason,  187. 
*  MecTuinics'  Bank  of  Alexandria  v. 
Seton,  1  Pet.  299,  308. 


80  PAETIES   TO   THE  ACTION.  [CH.  II. 

the  want  of  parties,  is  precisely  the  same  as  the  equity  rule 
of  pleadings  in  the  federal  courts.  The  latter  is  stated  by  Mr.  Jus- 
tice Wayne  in  the  opinion  of  the  court,  in  Story  v.  Limngston^ 
thus : 

"  Where  a  complainant  omits  to  bring  before  the  court  persons 
who  are  necessary  parties,  but  the  objection  does  not  appear  on 
the  face  of  the  bill,  the  proper  mode  to  take  advantage  of  it  is  by 
plea  or  answer.  If  the  objection  appears  on  the  face  of  the  bill, 
the  defendant  may  demur.  The  objection  of  a  misjoinder  of 
complainants  should  be  taken  either  by  demurrer,  or  in  the  answer 
of  the  defendants ;  it  is  too  late  to  urge  a  formal  objection  of  this 
kind  for  the  first  time  at  the  hearing." 

The  foregoing  are  general  and  well-settled  rules  of  equity 
pleading  and  there  can  be  little  doubt  that  they  are  in  the  main 
applicable  under  the  Code.  Most  of  them  have  been  repeatedly 
recognized  and  acted  upon  by  the  courts  of  this  State.''  Thus,  it 
is  laid  down  as  the  most  general  principle  in  relation  to  parties  to 
suits  in  equity,  that  every  person  who  is  at  all  interested  in  the 
suhject-matter  of  the  suit,  or  necessary  to  the  relief,  must  be  a 
party,  in  order  to  enable  the  court  to  settle  the  rights  of  all,  and 
make  a  complete  and  definite  decree  upon  the  merits.' 
P125]  Persons  are  necessary  parties  when  no  decree  can  be  *made 
respecting  the  subject-matter  of  litigation  untU  they  are 
before  the  court  either  as  complainants  or  defendants,  or  where 
the  defendants  already  before  the  court  have  such  an  interest  in 
having  them  made  parties  as  to  authorize  those  defendants  to 
object  to  proceeding  without  such  parties.^  All  persons,  having  a 
joint  and  common  interest  in  the  claim  set  up  in  the  complaint, 
are  necessary  parties.  Thus,  where  a  bill  was  filed  by  one  of  two 
ioint  makers  of  a  note  to  set  aside  a  judgment  confessed  on  the 
note,  which  it  was  alleged  was  usurious,  it  was  held,  by  the  chan- 
cellor, that  the  other  maker  was  a  necessary  party,  and  should 
have  been  joined  as  complainant,  unless  a  sufficient  excuse  was 
alleged  in  the  bill  for  omitting  to  make  him  complainant,  in 

1  13  Pet.  375.  ^  Same  cases  :  also,  HougJiton  v.  Al 

'  TruMees  of  Watertotcn  v.  Cowen,  4  len,  11  Paige,  331  ;  Christie  v.  Herrick 

Paige,  510  \BaiUy  \.Inglce  and  others,  1  Barb.  Ch.  254. 

2   id.  278  ;   Whelan  v.  Whelnn,  B  Cow.  *  Bailey  v.  Inglee  and  others,  2  Paige, 

538  ;  rolt  V.  Lasnier,  9  id.  321  ;  Fellows  278. 

V.  Feilom,  4  id.  683. 


SEC.  II.]  OF    PARTIES   PLAINTIFF.  81 

whicli  case  he  slioiild  have  been  defendant.*  This  is  precisely  the 
principle  adopted  by  the  Code.  All  persons  who  are  entitled  to 
litigate  the  same  questions  are  necessary  parties  to  a  suit  to  deter- 
mine them.  All  persons  who  are  entitled  to  any  share  of  a  fund 
are  necessary  parties  to  a  bill  for  an  account  and  distribution  of 
it.  Thus,  where  a  bill  is  filed  by  a  judgment  creditor  to  carry 
into  effect  an  assignment  of  the  debtor's  property,  the  other  cred- 
itors provided  for  in  the  assignment  should  be  made  parties,  or  the 
bill  should  be  filed  in  behalf  of  the  complainant  and  all  others 
who  may  choose  to  come  in  under  the  decree.^  But  it  is  other- 
wise, if  the  judgment  creditor  is  seeking  to  set  aside,  or  is  acting 
in  hostility  to,  the  assignment.'    [There  the  assignor  and  assignee 

are  the  only  necessary  parties,*]  and  the  same  principle 
[*126]  has  been  *  approved  in  a  case  arising  since  the  Code.* 

And  so,  too,  in  regard  to  the  provisions  of  the  Code  that 
when  the  question  is  one  of  a  common  or  general  interest  of 
many  persons,  or  the  parties  are  very  numerous,  one  or  more 
may  prosecute  for  the  benefit  of  the  rest,  it  is  but  adopting,  in 
terms,  a  rule  of  equity  which  our  own  courts  always  recognized. 
The  subject  is  discussed  in  the  case  of  Bouliton.  v.  The  City  of 
BrooJdyn*  and  the  reasons  and  grounds  of  the  principle  very 
clearly  enunciated  by  Justice  Brown  in  the  opinion  of  the 
court;  but  it  was  thought  in  that  case  not  to  extend  to  a 
suit  in  which  one  of  many  separate  owners  of  property,  prose- 
cuted in  his  own  behalf,  as  well  as  in  behalf  of  all  other 
owners,  to  avoid  an  assessment  made  by  a  municipal  corpo- 
ration on  such  separate  lots.  The  action  must  be  brought  to 
assert  a  common  right,  or  to  protect  a  common  interest, 
otherwise  the  principle  does  nc^t  apply.  A  similar  doctrine 
was  asserted  in  McKensie  v.  IJ Amoureaux^  in  which  it  was 
held,   that   an   action   might    be    brought    now,    as   before   the 

^Hoxighton  v.  Allen,  11  Paig-e,  323.  « 15  Barb.  S.  C.  375. 

"^Brooks    V.   Peck,    38   Barb.    519;  Ul   Barb.   S.    C.    516;    Towner   v. 

Bank,  etc.,  v.  Buy  dam,  6  How.  379.  Tooley,  38  id.  598.     [Many  cases  where 

3  Wakeman  v.  Oroveret  al.,A  Paige,  one  may  sue  in  behalf  of  himself  and 

23;   Bank,  etc.,  v.   Suydam,  6    How.  others    similarly   interested    will    be 

379.  found  in  the  note  to  Fenn  v.  Craig,  3 

'^  LawrencBY.The  Bank,?,\B.o^.5QQ  ;  Young  &  Collier,  Esch.  Eq.  334;  see 

35  N.  Y.  320  ;  Beardsley,  etc.,  v.  Foster,  post,  p.  673,  et  seq.l 

36  id.  566. 

^  Bank  of  British  North  America  v. 
Suydam  et  al. ,  6  How.  379. 

11 


82  •  PARTIES   TO   THE   ACTION".  [CH.  II. 

Code,  by  one  of  several  legatees  in  behalf  of  himself  and  others, 
for  an  account  of  the  personal  estates,  etc.,  and  to  have  the 
real  estate  sold,  and  the  proceeds  applied  in  the  payment  of  the 
debts  and  legacies.  In  this  case  it  was  held,  reversing  the  doc- 
trine of  the  court  below,  that  when  the  question  involved  was  one 
of  cominon  or  general  interest,  the  action  might  be  brought  by 

one  or  more  for  the  benefit  of  themselves  and  others  who 
[*127]  have  such  common  or  general  interest  ^without  showing 

that  the  parties  are  very  numerous,  or  that  it  would  be 
impracticable  to  bring  them  all  before  the  court.  Accordingly 
though  there  were  but  three  persons  whose  interests  were  identi- 
cal with  the  plaintifts,  and  who  were  not  joined,  it  was  decided 
that  the  action  was  well  brought.  In  such  cases,  however,  it  is 
essential  that  the  ^diriiQ^hscvG  svi(^  comm^on  or  general  interest ; 
but  where  they  are  ver}'  numerous,  and  it  is  impracticable  to 
bring  them  all  before  the  court,  and  action  may  be  so  brought,  it 
was  said,  when  the  parties  are  "  united  in  interest,"  whether  they 
have  such  "  common  interest  "  or  not.  A  distinction  was  taken 
in  this  case,  it  will  be  observed,  between  parties  united  in  inter- 
est, and  those  who  have  a  common  or  general  interest  in  the 
question.*  But  in  Hdbicht  v.  Pemberton^  in  the  New  York 
superior  court,  it  was  held,  that  a  member  of  an  unincorporated 
association  cannot  maintain,  in  his  name  for  the  benefit  of  the 
association,  an  action  on  a  note  given  to  or  held  by  the  associa- 
tion, without  showing  by  his  complaint  the  articles  or  other  instru- 
ment which  gave  him  such  right  or  authority.  The  mere  fact 
that  the  society  is  not  incorporated,  and  its  members  numerous, 
will  not  warrant  such  a  suit.  "  To  enable  the  plaintiff  to  bring  a 
Buit  in  his  own  right,  and  on  behalf  of  others  having  a  common 
interest,"  says  the  court,  "  it  is  not  sufficient  to  allege  that  the 
other  parties  are  so  numerous  that  it  would  be  impracticable  to 

bring  them  all  before  the  court,  but  the  nature  of  their  com- 
[*128]  mon  interest  must  appear  to  be  such  as  would  *entitle 

them,  were  they  all  before  the  court,  to  maintain  the 
action  in  their  own  right,  or  in  their  own  names."  [The  complaint 
in  such  case  must  distinctly  aver  that  the  parties  are  so  numerous 
that  it  would  be  impracticable  to  bring  them  all  in,  or,  if  brought 

»  Brooks  V.  Peck,  38  Barb.  519.  « 4  Sand.  657. 


8EC.  II.]  OF   PARTIES   PLAINTIFF.  83 

in,  to  prevent  tlie  suit  being  continually  abated  by  death  or 
change  of  interest.^  The  right  of  action  must  be  common  to,  or 
against,  all.  If  there  be  several  kinds  of  bonds  issued  by  a  rail- 
road company,  or  they  be  received  for  difierent  considerations  and 
under  various  circumstances,  one  defendant  cannot  be  prosecuted 
as  representing  all  the  holders.'' 

The  rule  is  thus  laid  down  by  Lord  Cottenham,^  reiterated  by 
him*  and  approved  by  Yice-Chancellor  Kendeksley.^  "  Where 
the  grievance  complained  of  is  common  to  a  body  of  persons  too 
numerous  to  be  all  made  parties,  the  court  has  permitted  one  or 
more  of  them  to  sue  on  behalf  of  all,  subject,  however,  to  this 
restriction,  that  the  relief  which  is  prayed  must  be  one  in  which 
the  parties,  which  the  plaintiff  proposes  to  represent,  have  all  of 
them  an  interest  identical  with  his  own,  for  if  what  is  asked  may 
by  possibility  be  injurious  to  any  of  them,  those  parties  must  be 
made  defendants,  because  each  and  every  of  them  may  have  a 
case  to  make  adverse  to  the  interests  of  the  party  suing.'  If, 
indeed,  they  are  so  numerous  that  it  is  impossible  to  make  them 
all  defendants,  that  is  a  state  of  things  for  which  no  remedy  has 
yet  been  provided.  In  Richardson  v.  Larjpent '  and  Evans  v. 
Stokes^  the  difficulty  occurred  but  the  objection  prevailed.  Many 
cases  may  occur  in  which  this  difficulty  must  lead  to  a  failure  of 
justice,  and  it  is  much  to  be  wished  that  some  remedy  could  be 
suggested  for  it."  ] 

It  will  be  seen,  therefore,  that  the  sections  of  the  Code  under 
consideration  are  but  re-enactments  substantially  of  the  old  equity 
rules  relative  to  parties,  and  extending  these  rules  to  actions  at 
law.  The  words  in  section  117,  "All  persons  having  an  interest 
in  the  subject  of  the  action,  and  in  obtaining  the  relief  demanded, 
may  join  as  plaintiffs,"  etc.,  it  is  said  will  be  construed  vitistjoin. 
Such,  it  seems,  was  the  old  chancery  rule,"  which  absolutely 
required  all  persons  having  a  joint  interest  in  the  subject-matter, 

'  See  Dunlap's   note   to   Baldwin  y.  ^  Fawcett  Y.Laurie,  I'Dvew.h^va.&le, 

Lawrence,  2    Sim.  &  Stu.  26  (Banks's  203. 

ed.) ;  3  Paige,  517  ;  1  id.  20;  3  Johns.  Cli.  «  Taylor  v.  Salmon,  4  Myl.  &  Cr.  134  ; 

553  ;  1  Myl.  &  Cr.  511  ;  3  id.  72.  Wallworth  v.  Holt,  4  id.  619. 

^  Eeid  V.   The  Evergreens,  21  How.  '  2  You.  &  Coll.  Ch.  507. 

318.                       •  8 1  Keen,  24. 

^  Moseley  v.  Alston,  1  Phill.  798.  '  See  cases  above  cited. 

*  Carlisle  v.  Southeastern  Railway,  1 
Mac  &  Gor.  699. 


84  PARTIES   TO   THE  ACTION".  [CH.  II. 

and  in  obtaining  the  relief  sought,  to  join.'  And  where  several 
persons  had  a  common  interest  arising  out  of  the  same  transac- 
tion, though  their  interest  was  not  joint,  \hey  Tnight  join  as  com- 
plainants in  one  suit."  As,  if  the  waters  of  a  stream  were 
diverted  to  the  common  injury  of  the  mills  below,  the  owners  of 
the  mills,  though  their  titles  were  several,  might  properly  unite 
in  one  bill  for  an  injunction.'  Though  persons  having  adverse  or 
conflicting  interests  in  the  subject  of  litigation,  should  not  join 
as  complainants.*  When  it  is  said,  therefore,  that  the  word 
"may"  in  the  statute  will  be  construed  "must,"  it  is  presumed 
nothing  more  is  meant  than  the  application  of  the  old  equity  rule 
of  pleading,  namely,  that  all  persons  having  a  joint  as  well  as 

common  interest  in  "  the  subject  of  the  action,  and  in 
[*129]  obtaining  the  relief  demanded,"  are  necessary  parties,  *and 

must  join  as  plaintiffs,  except  as  otherwise  provided  in 
title  three  of  the  ('ode.  Persons  having  a  common,  though  not 
2kjovnt,  interest,  2iTQ  proper  parties,  and  may  join  ;  but,  w^here  the 
interests  in  the  subject  of  the  litigation  are  adverse  or  conflicting, 
they  cannot  join  as  plaintiffs.*  [The  hostile  interest  does  not 
occur  when  the  legal  rights  of  the  parties  are  the  same,  and  the 
only  question  is  as  to  the  expediency  of  having  those  rights  enforced 
at  a  particular  time,  unless,  as  to  some  it  is  expedient  that  their 
rights  should  be  enforced  at  a  different  time  from  the  others ;  a  mere 
difference  of  opinion  as  to  the  best  time  for  enforcing  the  rights  of 
different  plaintiffs  does  not  constitute  a  hostility  of  interest.*] 
Section  119,  above  quoted,  seems  to  confirm  this  -vaew,  by  enact- 
ing that  "  those  who  are  united  in  interest  must  be  joined  as 
plaintiffs ;"  that  is,  are  necessary  parties,  except  in  the  case  men- 
tioned in  the  same  section,  where  any  of  them  will  not  consent, 
in  which  case  they  may  be  made  defendants ;  or,  as  the  rule  was 
established  in  equity,  they  miist  (unless  under  special  circum- 
stances) be  made  defendants.''  [When  one  who  should  be  made 
plaintiff  is  made  defendant,  for  the  reason  that  he  is  acting  v.\ 
hostility  to  plaintiff's  rights,  and  his  answer  shows  that  fact,  the 

>  See,  also,  9  Paige,  627.  « Brooks  v.  Peck,  38  Barb.  519. 

'3  Paige,  223.  ">  Boughton  v.  Allen,  11  Paige,  321; 

*  3  Paige,  577.  Hallett  v.  Uallett,  2  id.  15, 

*9  Paige,  255,3  Barb.  Ch.  397. 
'  FuUiam  v.  McCarthy,  1  H.  L.  Cas. 
703. 


REC.  II.]  OF   PARTIES    PLAi:^fTIFr.  85 

omission  of  an  averment  in  the  complaint,  of  tlie  reason  why  he 
is  not  made  defendant  is  cured.*  If  the  comphiint  allege  facts 
showing  he  is  so  acting,  it  is  not  necessary  to  allege  that  he 
refuses  to  join  as  a  co-plaintilf.°] 

The  distinction  between  parties  who  are  "  united  in  interest^'' 
and  those  who  have  "  a  coinmoti  or  general  interest^''  within  the 
meaning  of  the  Code,  is  very  clearly  taken  in  the  case  of  McKen- 
zie  V.  L'' Amoureaux,  heretofore  cited.^  I  understand  by  that 
case  the  rule  to  be  as  above  stated,  that  parties  united  in  interest 
must  join  as  plaintiffs,  except  in  the  one  case  s])ecified,  where 
they  are  very  numerous,  and  it  is  imjjracticable  to  bring  them 
all  before  the  court.  Where  there  is  this  "  common  or  general 
interest,"  they  may  join,  and  this  leaves  the  rule  precisely  as  it 
was  before  in  equity.  The  rule  that  parties  united  in  interest 
must  unite  as  plaintiifs  could  not  be  dispensed  with,  except  under 
peculiar  circumstances,  and  the  court  would  not  proceed  to  a 
decree  where  the  rights  of  persons  not  before  the  court 
[*130]  were  so  inseparably  ^connected  with  the  claims  of  parties 
litigant  that  no  decree  could  be  made  without  impairing 
the  rights  of  the  former.*  In  the  recent  case  of  Conro  v.  Port 
Henry  Iron  Co.,^  the  question  as  to  who  are  proper  and  who 
necessary  parties  is  discussed  in  its  application  to  a  creditor's  suit. 
A  common  interest  in  the  fund,  it  was  held,  afforded  a  good 
ground  to  join  parties  plaintiff;  and,  therefore,  within  the  former 
equity  rule,  that  different  creditors  might  unite  in  such  suit. 
They  were  proper,  though  not  necessary  parties,  because  the 
action  could  be  sustained  by  a  single  judgment  creditor.* 

The  rule,  however,  that  persons  having  a  common  though  not 
2k  joint  interest,  or,  as  it  is  more  broadly  expressed  in  the  Code, 
"  all  persons  homing  an  interest  in  the  subject  of  the  action,  and 
obtaining  the  relief  sought,"  are  proper  parties,  and  may  join,  is 
not  to  be  understood  literally  as  allowing  in  all  cases  two  or  more 
persons,  having  separate  causes  of  action  against  the  same  defend- 
ant, though  arising  out  of  the  same  transaction,  to  unite  and 

^Bate  V.   Graham,  11  N.    Y.    243;  '^  Hnllett  v.    Hallett   and    others,  2 

Oeere  v.  Dibble,  17  How.  31,  34.  Paige,  15. 

""Bate  Y.    Oraham,    11    N.  Y.  242;  ^  12  Barb.  S.  C.28. 

Geere  v.  Dibble,  17  How.  31,  34;   see  «  See,  also.  1  Paige,  367;   id    20;  4 

post,  marg.  pp.  184,  153,  159.  Johns.  Ch.  687. 


86  PAETIES   TO   THE   ACTIOIST.  [CH.  II, 

pursue  their  remedies  in  one  action/  It  has  been  well  said,  that 
there  is  a  class  of  cases  where  it  is  not  proper,  under  the  Code,  to 
join  persons  as  plaintiffs  who  may  have  a  common  interest  in 
the  subject-matter  of  the  suit.  In  actions  that  were  formerly 
denominated  ex  delioto,  for  injuries  to  the  person,  as  slander, 

battery,  or  false  imprisonment,  several  persons  cannot  sue 
[*131]  *  jointly.     Each  must  bring  a  separate  action,  except  in 

cases  of  slander,  of  title,  and  of  words  spoken  of  partners 
in  respect  to  their  trade."  Hence,  though  the  battery  or  false 
imprisonment  be  of  two  or  more  persons  at  the  same  time,  they 
must  bring  separate  actions.  They  are  not  "  united  in  interest," 
though  the  cause  of  action  aro^e  at  the  same  time  and  grew  out  of 
the  same  trespass.'  The  "  common  interest,"  it  would  seem,  which 
would  authorize  parties,  who  might  maintain  separate  actions,  to 
join  in  bringing  a  single  action,  must  be  a  common  interest  in 
obtaining  exactly  the  same  measure  and  kind  of  relief.  There 
must  be  one  distinct  general  right,  a  community  of  interest,  not 
merely  in  the  subject-matter  involved,  but  also  in  the  relief 
demanded.  Thus,  a  slander  uttered  of  two  persons  jointly,  cannot 
enable  them  jointly  to  sue,  because  each  demands  his  separate 
damages,  and  the  measure  of  damages  might  not  be  the  same. 
There  would  have  to  be  in  effect  two  verdicts  and  two  judgments 
in  the  same  suit. 

It  has  been  laid  down,*  as  a  general  principle  in  equity,  subject. 
however,  to  many  exceptions,  that  several  persons,  having  distinct 
and  independent  claims  to  relief  against  a  defendant,  cannot  join 
in  a  suit  for  the  separate  relief  of  each,  nor  can  a  single  complain- 
ant, having  distinct  and  independent  claims  to  relief  against  two 
or  more  persons  severally,  join  them  as  defendants.      In  that 

case  it  was  held,  that  a  prayer  by  several  complainants,  for 
[*132]  *  a  perpetual  injunction  to  restrain  a  nuisance,  might  be 

made,  but  not  for  an  account,  etc.,  of  damages  severally 
sustained  by  them ;  so  that  persons  owning  sepai-ate  tenements, 
affected  by  the  same  nuisance,  might  join  as  complainants.' 

'  As  to  plaintiffs   in    an    action    of  ^  Murray  v.  Eny,    1   Barb.  Ch.  59^ 

ejectment,  see  3  R.  S.  304,  §11,3  Edm.  Brady  v.  WeelcH,  3  Barb.  157. 

St.  313.  '^Peck  V.  Elder,  3  Sandf.   136,  and 

*  1  Cliit.  PI.  74.  cases  there  cited ;  \_Brady  v.  Weeks,  3 

3  1  Monell  Pr.  74.  Barb.  157]. 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  87 

Upon  the  same  principle  is  the  case  cited  above,  where  separate 
mill-owners  were  held  to  be  properly  united  in  a  bill  for  an  in- 
junction, for  diverting  the  stream  to  the  common  injury  of  all.' 
And  the  rule  seems  to  be  that  while  several  complainants  cannot 
demand,  by  one  bill,  several  matters  of  relief  perfectly  distinct 
and  unconnected,  nor  enforce  joint  and  separate  demands  against 
the  same  defendant,  yet,  where  one  general  right  is  claimed  by 
the  bill,  the  objection  of  improper  parties  cannot  be  maintained.* 

This  proposition  is  very  clearly  established  in  the  case  of  Fel- 
lows V.  Fellows^  and  the  rule,  as  laid  down  by  Chief  Baron 
McDonald,  is  quoted  with  approbation,  "  that  unconnected  parties 
may  be  joined  in  a  suit  where  there  is  one  common  interest 
among  them  all,  centering  in  the  point  in  issue  in  the  cause." 
There  must  be  a  common  right,  not  in  one  particular  item  or 
part  of  the  claim,  but  in  the  entire  subject-matter,  or,  as  it  is 
expressed  above,  "  in  the  point  in  issue  in  the  cause."  Thus,  if  an 
estate  is  sold  in  diffeyent  parcels,  to  different  purchasers,  the 
vendor  cannot  unite  them  all  in  one  bill  for  a  specific 
[*133]  performance,  *  nor  can  they  unite  in  one  suit  against  the 
vendor,  for  each  contract  is  separate  and  independent,  and 
each  case  must  depend  upon  its  own  peculiar  circumstances. 
Upon  the  same  principle  is  the  case  of  Bouton  v.  City  of  BrooTc- 
Z2/w.,Vhich  has  been  heretofore  alluded  to,  in  which  it  is  intimated 
that  the  owners  of  separate  lots  assessed  by  a  municipal  corpora- 
tion would  not  be  properly  joined  as  parties  to  a  suit  to  avoid 
such  assessment.  The  plaintiff  in  that  case  sued  in  behalf  of 
himself  and  others,  interested  in  the  property,  and  the  court  held 
the  action  to  be  the  plaintiff''s  alone.  It  was  neither  brought  "  to 
assert  a  common  right,  nor  to  procure  an  account  and  distribution 
of  a  common  fund,  nor  to  restrain  the  commission  of  an  act 
injurious  to  property  or  rights  in  which  he,  and  those  in  whose 
behalf  he  sues,  have  a  comm,on  interest^''  and  therefore  it  was  not 
an  action  which  could  be  properly  brought  in  behalf  of  the  i3lain- 
tiff'  and  others. 

Several  persons  cannot  join  their  several  rights  in  an  action  to 
recover  specific,  real  or  personal  property.^     Two  persons  avow- 

'  Hopk.  416,  3  Paige,  577.  ^  15  Barb.  375. 

«  Halst.  Ev.  168,  20  Pick.  328.  ^  2  Saund.  PI.  and  Ev.,  part  2  (5th 

»  4  Cow.  682.  Am.  ed.)  769. 


88  PARTIES   TO   THE   ACTIOTT.  [CH.  II. 

ing  that  the  title  is  in  the  one  or  the  other,  and  each  contending 
that  it  is  in  himself,  cannot  join,'  nor  can  a  person  join  with  him 
as  co-plaintiff  another  who  has  no  interest  in  the  relief  demanded.' 

The  provision  in  the  Code,  that,  if  the  consent  of  a  necessary 

party  as  plaintiff  cannot  be  obtained,  he  must  be  made  defendant, 

the  reason  being  stated  in  the  complaint,  is  also  but  a 

[*134:]  re-enactment  of  a  well-established  *rule  in  equity,'  and  is 

designed  to  conform  the  practice  under  the  Code  to  the 

former  equity  system  in  this  respect. 

The  provision  in  section  122  is  also  designed  to  conform  the 
practice  of  making  parties  more  closely  to  the  equity  system,  and 
it  is  precisely  the  equity  rule,  namely,  that  "the  court  may  deter- 
mine any  controversy  between  the  parties  before  it,  when  it  can 
be  done  without  prejudice  to  the  rights  of  others,  or  by  sa\'ing 
their  rights ;  but,  when  a  complete  determination  of  the  contro- 
versy cannot  be  had  without  the  presence  of  other  parties,  the 
court  must  cause  them  to  be  brought  in."  [It  is  the  right  of  a 
party  to  an  action  to  insist  that  all  necessary  parties  be  brought 
into  court,*  even  though  non-residents ; '  and  proceedings  will  be 
stayed  until  such  party  is  brought  in.*  Ordinarily,  the  complaint 
will  be  dismissed  unless  the  plaintiff  bring  in  necessary  parties 
within  such  time  as  the  court  designates.^  Where  it  appears  that 
a  complete  determination  of  the  controversy  cannot  be  had  without 
the  presence  of  other  parties,  the  Code  makes  it  the  imperative 
duty  of  the  court  to  cause  the  proper  parties  to  be  brought  in  ; 
and  if  a  party  proceed,  after  objection  by  answer,  he  will  be  made 
to  pay  subsequent  costs,  or  his  suit  will  be  dismissed  with  costs.* 
An  action  will  not  lie  by  an  employee  against  two  stockholders 

>  1  Turn.  107.  Holt  v.  Hardcastle,  3  T.  &  Coll.  Excli. 

«  2  Russ.  242,  [Fulham  v.  McCarthy,  Eq.  236. 

1  H.  L.  Cas.  703].  ^  Shaver  v.  Brainard.  29  Barb.  25  ; 

2  11  Paige,  321 ;  ante,  p.  129,  marg.  Valentine  v.  Wetherill,  31  id.  655  ;  Law- 

p. ;  Code,  §  111.  revce  v.  The  Bank,  31  How.  506  ;  Ifills 

^  Wooster  v.   Chamberlain,  28  Barb.  v.  PearHon,  2  Hilt.  16  ;  Crair/  v.  Ward, 

602;  Stronr/  v.  Whcaton,  38   id.  616;  2  Trans.  App.  281  ;  Darin  \.  31ayor,2 

Shaver  v.  Brainard,  2Q  id.  25  :  Valen^  Duer,  663;  Bath/  v.  Devvett,  3  Y.  & 

tine  V.  Wetherill,  31  id.  655;  Mills  v.  Coll.  Exch.  Eq.  459.     As  to  the  remedy 

Pearson,  2  Hilt.  16.  where  the  plaintiff  does  not  bring  in 

^  Sturtevant  y.  Brewer,  17  How.  571  ;  proper  parties,  see  cases  last  cited,  and 

9  Abb.  414,  affirmed,  4  Bosw.  628  ;  fibr-  Dunlap's    note    to    Hill    v.     Kirwan, 

ton  V.  Payne,  27  How.  374.  Jacob's  Ch.  165  (Banks's  ed.). 

*  Horton  V.  Payne,  27  How.  374.  ^  Van  Epps  v.  Van  Deusen,  4  Paige, 

'  Tarroway  v."  Hand,  2  Dick.  498;  75. 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  89 

of  a  corporation  ;  all  the  stockholders  are  necessary  parties.'  If 
defendant  have  once  insisted  a  party  is  not  a  necessary  one,  and 
the  name  be  stricken  out,  he  is  estopped  from  afterward  insisting 
upon  the  contrary."] 

An  objection  for  want  of  proper  parties,  taken  at  the  hearing, 
it  was  said,  ought  not  to  prevail,  except  in  very  strong  cases,  and 
where  the  court  perceives  that  a  necessary  and  indispensable 
party  is  wanting.'  Where  an  objection  is  made  for  want  of 
parties,  the  court  gives  leave  to  amend  and  make  proper  parties,* 
unless  where  the  objection  has  been  taken  by  the  defendant,  in 
his  answer,  and  the  complainant  neglects  to  make  the  proper 
parties  until  the  hearing.  In  such  case  the  court  will  dismiss  the 
bill,  or,  in  its  discretion,  order  the  proper  parties  to  be  brought 
in.^  The  policy  indicated  by  the  Code,*  is  to  allow  an  amend- 
ment in  all  cases,  by  ordering  the  proper  parties  to  be  brought  in 
at  the  hearing  on  such  terms  as  may  be  prescribed.'  An 
amendment,  however,  by  adding  or  striking  out  the 
[*135]  *names  of  parties,  it  is  said,  cannot  be  made  without 
leave  of  the  court.*  Therefore  it  appears,  that  on  a 
demurrer  for  want  of  parties,  or  an  answer  setting  up  such  an 
objection,  if  the  plaintiff  has  not  succeeded  in  making  such  parties 
as  will  enable  the  court  to  determine  the  controversy,  without 
prejudice  to  the  rights  of  others,  or  by  saving  their  rights,"  he 
must  either  dismiss  his  complaint  and  commence  anew,  or  apply 
on  motion  to  the  court  for  leave  to  amend  by  adding  the  proper 
parties.  [If  the  action  is  brought  to  trial  upon  the  answers  of 
some  of  the  defendants  only,  and  the  other  defendants  who  are 
necessary  parties  have  not  been  served  with  process  or  appeared 
in  the  action,  the  court  will  not  permit  the  trial  to  proceed."] 

Married  women.  It  was  a  general  rule,  under  the  old  system 
at  law,  that,  whatever  claim  or  demand  the  husband  might  dis- 
charge alone,  and  of  which  he  might  make  disposition  to  his  own 

'  BtTong  X.  Wheaton,  38  Barb.  616.  «  ^g  i22, 173. 

*  Carrington  v.  Crocker,  37  N.  Y.  336.        ''  Per    Willard,    Justice,    Vander- 

»  1  Pet.  (U.  S.)  299,  306.  loerker  v.  Vanderwerker,  7  Barb.  221. 

4  4  Wash.  202  ;  3  McLean,  104  ;  [7  »  Russell  v.  Spear,  5  How.  142,  id.  99. 
Rob.  506, 510.]  [See  McGarry  v.  Board,        »  5  How.  Pr.  99. 

etc.,  7  Rob.  464.]  [^''Powell  v.  Mnch,  5  Duer,  666  ;  Good 

5  4  Paige,  75  ;  7  Barb.  S.  C.  221 ;  1    year  v.  Brooks,  4  Rob.  682,  688.] 
Pet.  138,  139. 

12 


90  PARTIES   TO   THE   ACTION".  [CH,  II. 

use,  tlie  husband  alone  miglit  sue  to  recover.  Thus,  for  personal 
property  owned  by  the  wife  before  marriage,  rent  accruing  dur- 
ing marriage,  and  the  like,  the  husband  might  sue  alone,  without 
joining  the  wife.  The  rule,  under  the  act  for  the  protection  of 
the  property  of  married  women,  is  now  changed.  The  real  and 
personal  property  of  the  wife,  including  of  course  her  choses  in 
action,  are  now  her  separate  property,  and  she  should  sue  foi 
them  alone.     So,  in  respect  to  injuries  to  her  personal  property 

committed  before  marriage,  in  which  it  was  formei'ly  held, 
[*136]  that  husband  and  wife  *must  join ;'  she  must  now,  it 

seems,  sue  alone.  The  subject  in  regard  to  the  capacity 
of  a  married  woman  to  sue  alone,  and  when  and  in  what  manner 
her  husband  uiimt  join  with  her  in  the  action,  has  been  already  so 
fully  considered  in  the  previous  section  that  it  cannot  be  necessary 
to  pursue  it  further  in  this  place. 

Comtnittees  of  lunatics  and  persons  suing  in  a  representative 
capacity.  The  Code  has  also  very  nearly  adopted  the  equity  rule 
as  to  parties  in  cases  of  trusteeship.  Section  111,  that  every 
action  must  be  prosecuted  in  the  name  of  the  real  party  in  inter- 
est, is  made  subject  to  the  provisions  of  section  113,  constituting 
the  exceptions  to  the  general  rule.  This  latter  section  has  refer- 
ence to  three  classes  of  persons :  1,  executors  and  administrators ; 
2,  trustees  of  an  express  trust ;  and,  3,  persons  expressly  author- 
ized by  statute  to  sue ;  and  reads  as  follows : 

"  An  executor  or  administrator,  a  trustee  of  an  express  trust,  or 
a  person  expressly  authorized  to  sue  by  statute,  may  sue  without 
joining  with  him  the  person  for  whose  benefit  the  action  is  prose- 
cuted. A  trustee  of  an  express  trust  within  the  meatiing  of  this 
section  shall  be  construed  to  include  a  person  with  ichom,  or  in  ivhose 
name,  a  contract  is  made  for  the  henefit  of  another." 

[*137]  '^Express  trusts.  Before  the  amendment  of  the  section, 
indicated  by  the  words  in  italics,  it  was  doubted  whether  the 
words  "  express  trusts "  did  not  refer  solely  to  trusts  of  land 
authorized  by  the  revised  statutes,  and  which  in  the  statutes  are 
termed  "  express  trusts."  In  the  case  of  Grinnell  v.  -Schmidt,* 
in  tHe  New  York  superior  court,  it  was  held,  that  the  words 
should  not  receive  this  restricted  meaning.  Justice  Mason  in  the 
opinion  delivered  in  that  case,  after  consultation  with  his  asso« 

'  1  Chit.  PI.  83, 84.  '  3  Sand.  706. 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  91 

ciateSj  says:  "They  are  capable  of  a  more  extensive  signification, 
so  as  to  include  all  contracts  in  wliicli  one  person  acts  in  trust 
for,  or  in  behalf  of,  another.  Of  this  kind  are  contracts  made  by 
factors  and  other  mercantile  agents  who  act  in  their  own  names 
for  the  benefit  of,  and  without  disclosing,  their  principals."  It 
was  also  said  in  that  case  that  the  plaintiffs  (the  factors)  were 
"  the  proper  and  only  proper  persons  to  bring  the  action." 

And  under  this  construction  it  has  even  been  declared  that  the 
general  agent  of  a  society  or  association,  not  incorporated,  may 
maintain  an  action  for  and  on  behalf  of  such  company  or  associa- 
tion ;'  a  mere  general  statement,  however,  that  the  plaintift'  is 
authorized  to  bring  the  suit  is  not  sufiicient ;  the  nature  and 
terms  of  his  authority  must  be  set  forth,  to  enable  the  court  to 
judge,  as  a  question  of  law,  whether  he  has  such  authority. 

A  similar  decision  was  made  by  the  supreme  court,  at 
[*138]  general  term,  in  Erickson  v.  Comjpton^  *wherein  it  was 
held,  that  it  was  proper  for  a  principal  to  sue  in  his  own 
name,  on  a  contract  made  by  an  agent  in  the  agent's  own  name, 
but  of  which  the  principal  was  sole  owner.  It  was  said,  however, 
that  the  Code,  in  abolishing  the  common-law  rule  in  regard  to 
parties  in  such  case,  conferred  upon  the  principal  the  right  to  sue 
in  his  own  name,  or  in  the  name  of  the  agent,  at  his  election.^ 

It  was  held  also  in  Grinnell  v.  Schmidt,  that  section  111  of  tho 
Code,  which  provides  that  every  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  etc.,  was  but  a  statutory  enact- 
ment of  the  rule  respecting  parties  which  has  always  prevailed  in 
com-ts  of  equity,  and  the  court  was  bound  in  its  application  to 
adopt,  as  far  as  practicable,  those  principles  which  have  been 
found  to  be  best  suited  to  advance  the  ends  of  justice.  Accord- 
ing to  these  principles,  as  we  have  seen,*  the  committee  of  a 
lunatic  might  prosecute  a  suit  in  equity  to  avoid  the  acts  of 
the  lunatic,  to  obtain  paj^ment  of  a  debt,  etc.,  without  joining  the 
lunatic,  and,  therefore,  independent  of  the  statute  of  1845,  the 
Code,  if  this  interpretation  is  correct,  confers  power  upon  the 
committee  to  do  the  same.  Whether  the  words  "  express  trust " 
may  be  construed  in  such  a  manner  as  to  authorize  the  committee 

*  Rabicht  v.  Pemberton,  4  Sand.  657.        =  Per  T.  R.  Strong,  J. 
^  6  How.  Pr.  471,  General  Term,  7th        ■*  Ante,  p.  88,  marg.  p. 
District 


92  PARTIES   TO   THE  ACTIOIST.  [CH.  II. 

to  prosecute  an  action  concerning  the  real  property  of  the  hniatic 
without  joining  him  maj  be  doubted,  but  it  by  no  means  follows 

that  such  actions  must  be  brought  in  the  name  of  the 
[*139]  lunatic  alone.'     On  the  contrary,  the  rule  *applicable  to 

parties  under  the  equity  system  would  undoubtedly  apply 
to  such  cases,  and  the  committee,  if  not  a  necessary,  would  at 
least  be  a  proper,  party  to  the  complaint,''  as  the  complaint  of  the 
lunatic  in  the  names  of  both. 

In  the  case  of  GorKam  v.  Gorharrv'  the  chancellor  held  the 
rule  to  be  that  where  a  bill  is  filed  by  the  committee  of  a  lunatic 
to  set  aside  an  act  done  by  such  lunatic  upon  the  ground  of  his 
incompetency,  it  is  not  necessary  that  the  lunatic  be  a  party ;  but 
he  may  be  joined  as  a  party  with  his  committee.  In  all  other 
cases  the  settled  practice  is,  either  to  join  the  committee  with  the 
lunatic,  or  to  file  the  bill  in  the  name  of  the  lunatic  by  his  com- 
mittee. Thus,  in  that  case,  it  was  said  that  the  lunatic  was  a 
necessary  party  plaintiff  to  a  bill  for  partition  of  real  estate.  Such 
a  bill,  if  the  committee  described  themselves  in  their  own  names 
as  committee,  is  their  bill  and  not  the  bill  of  the  lunatic  by  his 
committee ;  and  a  decree  in  favor  of  the  complainants  would  not 
be  a  decree  in  favor  of  the  lunatic.  Alluding  to  the  doctrine  laid 
down  by  writers  in  equity  pleading,  that  lunatics  must  sue  by 
their  committees,  the  chancellor  says,  "  when  it  is  said,  by  these 
writers,  that  idiots  and  lunatics  must  sue  hy  their  committees,  it 
is  not  meant  that  the  suit  is  to  be  brought  by  the  committee,  in 
his  own  name,  merely  describing  himself  as  the  committee  of  the 

lunatic,  as  has  been  erroneously  supposed  by  the  court  of 
[*140]  one  of  our  sister  States.     But  they  mean  *  that  the  suit 

should  be  brought  in  the  name  of  the  lunatic,  stating  that 
he  sues  hy  the  coinrriittee  of  his  estate,  naming  them,  as  in  the 
case  of  an  infant  suing  by  next  friend."  These  remarks  are  well 
worthy  of  consideration  in  reference  to  the  section  of  the  Code 
alluded  to.  The  practice  indicated  by  them  of  bringing  the  suit 
in  the  name  of  the  lunatic  hy  his  committee,  would  doubtless  be 
correct  in  all  cases  under  the  Code. 

Still  the  committee  may  sue  without  joining  the  lunatic  for  the 

•  Laws  1845,  p.  90,  4  Edm.  St.  553.  ^  3  Barb.  Cli.  24. 

2  3  Barb.  Ch.  24 ;  7  Jobns.  Cb.  139. 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  93 

purpose  of  setting  aside  acts  or  deeds  of  the  lunatic  done  by  liira 
while  such.  The  whole  subject  was  very  carefully  considered  in 
the  recent  case  of  Person^  committee^  etc.,  v.  Warren  cmd  others,^ 
and  the  judgment  of  the  court  pronounced  by  Justice  Taggart 
was,  that  the  committee  of  the  person  and  estate  of  a  lunatic  was 
to  be  deemed  "  a  trustee  of  an  express  trust,  within  the  meaning 
(>f  the  Code,  so  as  to  enable  him  to  sue  alone.' 

In  regard  to  the  appearance  of  a  lunatic  defendant,  he  may  be 
joined  with  his  committee  in  all  cases,  and  he  is  doubtless  a 
necessary  party  in  an  action  concerning  his  realty ;  the  commit- 
tee, as  of  course,  putting  in  the  answer  of  the  lunatic  as  his 
guardian."  [A  general  guardian  of  infants  may  maintain  an 
action  in  his  own  name,  as  such,  to  recover  a  debt  due  to  his 
wards.*] 

As  to  the  other  trustees  and  cestui  que  trust,  similar  rules  will 
apply.  It  was  long  the  practice  in  chancery,  when  a  trustee  com- 
menced a  suit,  to  require  the  cestui  que  trust  to  be  made  a  party, 
otherwise  it  was  said  the  latter  would  neither  obtain  relief  nor 

be  bound  by  it."  Still,  the  rule  was  not  imperative. 
[*141]  ■^And  when  the  cestui  que  trust  filed  a  bill  (except  against 

the  trustee),  both  ought  always  to  be  joined  as  parties. 
Where  the  action  is  to  remove  the  trustee,  or  for  an  account,  etc., 
all  the  cestui  que  trust  interested  in  tlie  estate  must  join.  A 
married  woman  in  such  case  must  sue  alone  by  next  friend,  mak- 
ing her  husband  a  party  defendant.'  A  mere  nominal  trustee 
could  not  bring  a  suit  in  equity  in  his  own  name,  but  the  cestui 
que  trust  must  join.''  But  the  trustees  of  real  estate,  for  the  pay- 
ment of  debts  or  legacies,  might  sustain  a  suit,  either  as  plaintiff's 
or  defendants,  without  bringing  before  the  court  the  creditors  or 
legatees  for  whom  they  were  trustees.'  So  assignees  or  other 
trustees  of  a  fund,  for  the  benefit  of  creditors,  might  sue  for  the 
protection  of  the  fund,  or  the  collection  of  part  of  it,  without 

•14  Barb.S.C.  488  [Bavis Y.Spencer,        ^1  C.  R.  N.  S.  309,  6  Paige,  237,  3 

24  N.  Y.  386].  Johns.  Ch.  242. 

[*  The  subject  of  suits  by  and  against        ■^  Thomas  v.  Bennett,  56  Barb.  197. 
lunatics,  habitual  drunkards,  etc.,  is        °  See   Edw.    on    Parties,    158,    and 

considered  by  the  editor  of  the  present  cases  cited, 
edition  in  a  note  to  the  Matter  of  Mc-        «  6  Barb.  S.  C.  403. 
Laughlin,  Clarke's  Ch.  Rep.  118,  119,        ■"  2  Jolins.  Ch.  38. 
new  ed.l  s  Mitf.  PL  174. 


94  PAETIES   TO   THE   ACTIOTf,  [CH.  II. 

making  tlie  cestui  que  trust  parties/  But  though  the  cestui  que 
trust  was  not  in  sucli  cases  a  necessary  party,  still  he  might  be 
properly  joined  in  actions  prosecuted  for  the  benefit  of  his  estate." 
It  is  scarcely  to  be  supposed  that  the  Code  designed  to  change  the 
equity  rule  in  this  respect,  or  do  any  thing  more  than  authorize  a 
trustee  of  an  express  trust  to  sue  alone,  permitting  him,  however, 
to  join  the  cestui  que  trust  in  actions  prosecuted  for  the  benefit 
of  the  estate.  What  was  said  in  the  case  of  Grinnell  v.  Schmidt, 
above  alluded  to,  though  intimating  that  the  word  "  may  "  was  to 
be  construed  "must,"  was  a  mere  dictum,  and  was  not 
[*142]  necessary  to  the  decision  of  the  *  case.  That  the  agent 
or  trustee  in  that  case  was  the  '•'•  only  proper  person  to 
bring  the  action,"  does  not  necessarily  mean  that  the  person  for 
whose  benefit  the  action  is  really  prosecuted  might  not  also  be  a 
party.  [The  people  are  trustees  of  an  express  trust,  as  to  all 
bonds  given  to  them  for  the  benefit  of  parties,  and  the  action 
must  be  in  the  name  of  the  people,  and  not  of  the  parties  inter- 
ested.' The  party  interested  may  be  joined  as  relator.*  All  the 
trustees  should  sue,  although  one  has  conveyed  to  the  other,*] 

Executors  and  Administrators  are  also  authorized  by  the  Code 
to  sue  and  be  sued,  without  joining  the  persons  for  whose  benefit 
the  action  is  prosecuted.  This,  of  course,  relates  only  to  actions 
concerning  the  personal  property,  and  actions  for  wrongs  to  the 
deceased  specified  by  statute.  The  executor  or  administrator  has 
nothing  to  do  with  the  real  estate  of  the  deceased,  and  actions 
concerning  it  should  now,  as  before  the  Code,  be  brought  by  the 
heir  or  devisee  in  whom  the  title  vests.  In  an  action  to  recover 
the  possession  of,  or  to  determine  any  claim  to,  real  estate,  the 
heir,  and  not  the  executor,  is  the  representative  of  the  deceased, 
and  the  only  proper  person  to  maintain  such  action.  Though  in 
an  action  to  foreclose  a  mortgage  the  executor,  and  not  the  heir, 
is  the  proper  party  plaintifi:,  the  mortgage  being  assets  in  the 
hands  of  the  executor,  in  such  a  case  the  heir  is  a  proper  party 
defendant.'     And  an  action  for  the  breach  of  a  covenant  of  seizin 

'  1  Barb.  Ch.  254,  4  Paige,  13.  People  v.    Toicnsend,   37   Barb.   520 

« Fink    V.    Rowland,    1    Paige,    20  ;  People  v.  Laws,  3  Abb.  430,  4  id.  292 

Schenck  v.  Ellin q wood,  3  Edw.  175.  *  Peoj)le  \.  Laics,  4  Abb.  292. 

'^Annett  v.   Kerr,  2   Rob.   550,    28        ^  77iatc7i.erx.  Candee,^3  Bow.  U^. 

How.  324 ;  People  v.  Morton,  9  N.  Y.         «  g^^  on  Parties,  9. 

176;  Bos  V.  Seaman,  3  Code  Rep.  1; 


SEC.  II.]  OF   PARTIES   PLAINTIFF.  95 

or  agaiust  incumbrances  accrues  to  the  personal  representatives, 
and  must  be  by  the  executor,  and  not  by  the  heir.^  Biit  an  action 
on  a  covenant  which  runs  with  the  land,  such  as  a  lessor's  coven- 
ant to  repair  damages  by  fire,''  a  covenant  not  to  erect 
[*143]  buildings  in  front  of  the  premises  conveyed,^  a  *  covenant 
of  warranty,*  must  be  brought  in  the  name  of  the  heir, 
he  being  the  real  party  in  interest. 

An  executor  or  administrator  is  not  a  proper  party  to  a  suit 
for  a  partition  of  real  estate,  nor  for  an  injunction  to  restrain 
waste  or  trespass  to  lands,  or  for  a  specific  performance  of  a  con- 
tract made  with  deceased  to  convey  lands,  etc.,  etc.  The  Code 
does  not  intend,  in  this  respect,  to  alter  the  rule  as  it  existed 
before. 

Persons  expressly  authorized  hy  statute  are  also  excepted  from 
the  operation  of  section  111  of  the  Code,  and  may  still  prosecute, 
notwithstanding  they  may  not  be  the  "  real  parties  in  interest." 
It  is  not  deemed  necessary  to  enumerate  the  various  cases  where 
persons  are  by  statute  authorized  to  sue.  It  includes  all  town 
and  county  officers,^  supervisors,  loan  ofiicers  or  commissioners  of 
loans  of  a  county,  county  superintendents  of  poor,*  commissioners 
of  common  schools,  commissioners  of  highways,  trustees  of  schoox 
districts  and  town  superintendents  of  common  schools.''  It  was 
said  by  Justice  Bkonson,  in  Supervisor  of  Galway  v.  Stimson.^ 
that,  in  general,  all  public  officers,  though  not  expressly  author- 
ized by  statute,  have  a  capacity  to  sue  commensurate  Math  their 
public  trusts  and  duties  ;  the  authority  to  bring  all  suits  which 
the  proper  and  faithful  discharge  of  their  official  duties  requires, 
being  an  incident  to  their  ofiice.'  The  Code,  however, 
[*14:4]  has  not  limited  the  right  of  action  to  *  persons  expressly 
authorized  by  statute.'*  The  action  should  not  be  merely 
in  the  name  of  oflice,  but  in  the  name  of  the  officer,  with  the 

>  4  Johns.  72,  10  Wend.  143.  ['» In  the  opinion  of   the   editor  of 

'  3  Denio,  284.  the  present  edition  it  was  not  intended 

'4  Paige,  510.  to  abridge  the  cases,  where  a  public 

*  1   Johns.    895,   11    id.    123,    15   id.  officer  could  maintain  an  action.     Peo- 

497.  pU  V.  Supervisors,  33  N.  Y.  477.     See 

^3  R.  S.  236,  §  5,  2  Edm.  St.  241.  Palmer  v.  Fort  Plain,  etc.,  II  id  37.'i ; 

\^  Alger  \.  Sherman,  56  Barb.  237.]  Barkers.  Loomis,  6  Hill,  463;  Pottr.r 

^  2  R.  S.  473,  §  93,  3  Edm.  St.  494.  v.  Davis,  Lalor's  Sup.  394 ;  Mather  v. 

8  4  Hill,  136.  Crawford,  36  Barb.  564.] 
'  18  Johns.  407. 


96  PARTIES   TO   THE   ACTIOlSr.  [CH.  II. 

addition  of  his  name  of  office.'  Commissioners  of  highways, 
under  the  statute,  cannot  maintain  an  action  of  trespass  for 
injury  to  the  highway.*  [They  may  maintain  an  action  against  a 
railroad  company  to  compel  such  company  to  restore  the  high- 
way to  its  former  state  of  usefulness,  according  to  the  obligation 
imposed  by  statute.'] 

The  action  upon  an  official  bond  of  a  town  superintendent  of 
common  schools  must  be  brought  in  the  name  of  the  supervisor 
to  whom  the  same  was  given,  or  his  successor  in  office.  It  cannot 
be  brought  in  the  name  of  a  subsequent  town  superintendent  of 
common  schools.  The  case  comes  within  the  exceptions  provided 
in  section  113  of  the  Code  ;*  and  generally  the  section  applies  to 
all  suits  by  official  persons,  in  their  names  of  office,  under  special 
authority  conferred  by  statute.* 

The  president  of  a  bank,  incorporated  under  the  general  bank- 
ing law,  is  authorized  by  statute  to  prosecute  all  actions 
[*145]  brought  by  or  on  behalf  of  such  *  incorporation.'  [Other- 
wise, as  to  an  individual  banker,  carrying  on  business 
under  the  general  banking  act  of  1838.''  But  suing  as  a  co]"po- 
ration  in  such  case,  is  a  mere  formal  error,  amendable  in  the 
courts  of  original  jurisdiction  and  disregarded  by  the  court  of 
appeals.*]  Such  actions  may  also  be  properly  brought  in  the  name 
of  the  bank.'  In  case  the  action  be  brought  in  the  name  of  the 
president,  it  should  be  with  the  addition  of  his  title,  and  the  alle- 
gation made  in  the  complaint  that  he  is  such  president,  and  that 
the  bank  was  organized  under  the  provisions  of  the  general  bank- 
ing act."*  If  it  appear,  upon  the  complaint,  that  the  cause  of 
action  belongs  to  another,  it  should  also  affirmatively  appear  that 

'  4  Hill,  13G.  8  Hoogland  and  Van  WicMen  v.  Hitd- 

2  25  Wend.  365,  1  Denio,  510.  son  et  al.,  8  How.  343. 

[3  Laws  1855,  ch.  255,  p.   388.     See  «  Chap.  260,  Laws  of  1838,  t;  21. 

People  V.  Troy,  etc.,  37  110^.427.]  ">  Codd  v.   RatJihone,   19   N.   Y.   37; 

^  Fuller  V.  Fullerton,   14   Barb.   59.  Hallett  v.  Harrower,  33  Barb.  538,  543. 

An  action  against  a  county  should  be  *  Bank,  etc.,  v.  Magee,  20  N.  Y.  355. 

brought  against  the  "  Board  of  Super-  '  Delnfield  v.  Kinney,  24  Wend.  345 ; 

msoT-s"  of  the  county.     But  when  the  [LeonardsulleBank\.Willard,\Q  AWo. 

action   is   against  the   Supervisors,  it  111  ;  25  N.  Y.  574.] 

should  be  brought  against  them  indi-  ^^  Root  v.  Marine,  etc.,  22  How.  372, 

vidually,    specifying    their    name    of  378. 
olfice.  *  Wild  et  al.  v.  Columbia  County 
Supervisors,  9  How.  815. 


SEC.  II.]  OF   PARTIES   PLAIIS^TIFF.  97 

tlie  person  suing  is  expressly  authorized  by  the  statute  to  bring 
the  action,  instead  of  the  real  parties  in  interest. 

[The  following  persons  are  authorized  to  sue,  by  virtue  of  stat- 
utory provisions :  The  treasurer  of  a  cheese  factory  ;'  so  such  an 
action  may  be  brought  against  one  of  the  patrons  of  such  a  fac- 
tory by  all  the  other  patrons  ;''  the  president  of  a  Christian  asso- 
ciation f  a  division  of  sons  of  temperance  ;*  a  steamboat  company  ;* 
and,  indeed,  all  joint-stock  associations,  composed  of  more  than 
seven  persons,  owning jprojperty  in  commonJ^  In  a  suit  to  wind 
up  a  club  or  partnership,  all  persons  interested  must  be  made 
parties,  though  they  are  numerous ;  it  is  not  sufficient  for  one  to 
sue  on  behalf  of  the  others.' 

The  object  of  the  statutes  of  1849,'  1851'  and  1853"  was  not  to 
create  any  new  causes  of  action,  but  to  obviate  the  inconvenience  of 
bringing  in  all  the  shareholders  or  associates  as  parties."  If  the 
associates  of  such  a  joint-stock  company  are  sought  to  be  charged, 
an  action  must  first  be  brought  against  the  president  or  treasurer  of 
the  association,  and  the  remedy  against  their  joint  property  ex- 
hausted ;'^  but  the  original  cause  of  action  must  be  stated  in  the 
complaint,  as  the  action  against  the  stockholder  is  based  upon  the 
original  cause  of  action  against  the  companj^"  The  acts  do  not 
embrace  fire  companies."  The  statutes  apply  to  any  joint  associa- 
tion, although  the  members  are  not  shareholders  or  stockholders," 
but  only  to  actions  to  reach  joint  property  and  eft'ects.'^] 

Substitution  of  jt^cw'^/es  plaintiff.  If  the  contract  is  assigned 
after  the  action  is  commenced,  the  action  must  be  continued  in 
the  name  of  the  original  party  unless  the  court  allows  the  person 

'  Bridevbecker  v.  Hoard,   33    How.  » Laws  1851,  p.  838, 4  Edm.  St.  652. 

289.  i»  Laws  1853,  p.  283,  amending  §  4  of 

» Thompson  v.  Howe,  46  Barb.  287,  act  1849,  4  Edm.  St.  651. 

288.  "  Corning  v.  Greene,  23  Barb.  33  ;  af- 

^De  Witt  V.  Chandler,  11  Abb.  459.  firmed,  26   N.  Y.  472,  note,  28  How. 

4  Tibbitts  V.  Blood,  21  Barb.  650.  The  581. 

question  was  not  passed  upon  in  Austin  ^^  Bobbins  v.  Wells,  1  Rob.    666,   18 

V.  Searing,  16  N.  Y.  112,  125.  Abb.  191,  26  How.  15;   Witherhead  v. 

^  Witherhead  v.  Allen,  28  Barb.  661 ;  Allen,  3  Trans.  App.  258,  reversing  28 

reversed  on  another  point,  3   Trans.  Barb.  661. 

App.  258.  13  Witherhead  v.  Allen,  3  Trans.  App. 

^  Bridenbecker   v.  Hoard,  32  How.  258,  3  Keves,  562;  but  see  Miller  v. 

297.  White,  8  Abb.  N.  S.  46. 

'  Richardson  v.  Hastings,  7  Beav.  301,  '*  Masterson  v.  Botts,  4  Abb.  130. 

and  see  note,  p.  308,  Banks's  ed.  '^  Kingsland  v.  Braisted,  2  Lans.  17. 

«Laws  1849,  p.  389, 4  Edm.  St.  650.  '» Rorke  v.  Russell,  2  Lans.  244. 

13 


98  PARTIES   TO   THE  ACTIOIST.  [CH.  II. 

to  whom  the  transfer  is  made  to  be  substituted.'  Under  this  sec- 
tion it  has  been  held,  that  where  one  plaintiff,  after  action  com- 
menced, assigned  all  his  interest  to  his  co-plaintiff,  and  the  latter 
died,  it  was  optional  with  the  court  to  allow  the  action  to  be  con- 
tinued in  the  name  of  the  administrator  alone.  Inasmuch,  as  in 
such  case  there  would  be  no  party  but  an  administrator  to  respond 
to  the  defendant  in  costs,  the  action  was  directed  to  be  continued 
in  the  name  of  the  surviving  plaintiff,  though  he  had  assigned  his 

demand,  and  the  representative  of  the  deceased  one.* 
[146*]  So  in  case  of  any  other  transfer  of  interest  after  *com- 
mencement  of  suit,  or  in  case  of  death,  marriage  or  other 
disability,  the  court  will  allow  the  action  to  be  continued  by  or 
against  the  party's  representative  or  successor  in  interest.'  In 
case  of  the  death  of  a  plaintiff,  his  personal  representatives  have 
no  right  to  elect,  whether  it  shall  stand  revived  or  not ;  the 
defendants  are  entitled  to  have  the  action  continued  in  the  name 
of  the  plaintiff's  representative.*  As  to  the  practice  of  reviving 
a  suit  hy  sujppletnental  complaint,  in  the  name  of  the  plaintiff's 
personal  representative,  after  the  lapse  of  a  year,  see  Greene  v. 
Sates."  See,  also,  Williamson  and  wife  v.  Moore,  in  the  New 
York  superior  court,'  holding  that  where  some  of  several  com- 
plainants die,  and  the  cause  of  action  does  not  sm'vive  but  con- 
tinues as  to  the  survivors,  the  latter  cannot  be  compelled  to 
revive  the  suit  against  the  representatives  of  the  deceased  com- 
plainants. 

In  case  of  the  death  of  a  party,  the  cause  of  action  must  be  one 
which  survives,  in  order  to  authorize  the  court  to  allow  it  to  be 
continued  by  the  representative.^  By  statute,  actions  for  injuries 
to  the  property,  rights  and  interests  of  another  survive  in  the 
same  manner  as  actions  on  contract,  except,  however,  actions  for 
slander,  libel,  assault  and  battery,  and  other  injuries  to  the  per- 
son.* In  the  cases  last  mentioned,  the  cause  of  action  dies  with 
the  person,   and  leave  cannot  be  granted   to   the   executor  or 

1  Code,  §  121.  »  7  How.  Pr.  296. 

*  Sheldon  and  Plielps  v.  Havens,  7        '  5  Sand.  647. 
How.  Pr.  268.  '  3  How.  Pr.  385. 

^  Code,  ^  121 ;  WaldorpJi  v.  Bortle,  4        *  Ante,  marg.  p.  Ill  et  seq. 
How.  Pr.  358. 

■*  Ridgway  v.  Bulkley  et  al.,  7  How. 
Pr.  269. 


SEC.  II.]  OF  PARTIES   PLAINTIFF.  99 

[*147]  administrator  to  continue  it,  unless  in  the  one  *case  of 
injury  to  the  person,  as  provided  by  the  statute  of  1847.* 
Where  a  party  prosecuting  an  action  for  such  an  injury  dies  pend- 
ing the  suit,  the  court  will  doubtless  allow  it  to  be  continued  by 
his  personal  representative  under  this  section  of  the  Code.  The 
suit,  however,  must  have  been  actually  commenced  by  the  ser- 
vice of  the  summons  before  it  can  be  revived  on  the  death  of  a 
party.' 

The  term  "successor  in  interest"  does  not  include  the  people 
when  they  claim  lands  by  escheat.'  And  therefore  it  would  not 
be  proper  lor  the  court,  on  motion,  to  allow  the  people  to  be  made 
a  party  in  an  ejectment  suit  on  the  death  of  the  plaintiff. 

A  party  claiming  to  be  substituted  must  show  who  is  the  suc- 
cessor. He  must  make  out  a  prima  facie  case  before  the  right 
attaches.* 

The  substitution  has  been  refused  to  be  made  in  a  suit  pending 
before  the  Code  took  effect,  for  the  reason  that  the  provision  as  to 
such  suits  was  unconstitutional.'  Also,  where  the  principal  object 
of  the  substitution  is  to  make  the  original  plaintiff  a  witness.* 

The  "  successor  in  interest,"  in  case  of  a  transfer  or  assignment, 
is  the  person  acquiring  the  title  or  property.  The  "  representa- 
tive "  is  the  administrator  or  executor  in  suits  which  would  be 
properly  brought  by  them  and  the  heir  in  actions  concerning  the 
realty,  as,  for  example,  an  action  for  an  injunction  to  stay  waste, 
for  the  recovery  ot  real  estate,  etc.,  etc' 

[Formerly  an  action  of  ejectment  could  not  be  revived.*  Other- 
wise now  by  statute."  And  so  formerly  of  an  equity  suit."  It  has 
been  held  that,  if  a  party  be  convicted  of  a  felony,  he  is  civilly 
dead,  and  an  action  pending  hy  him  abates."  But  he  may  be 
made-  defendant  and  process  served  upon  him  in  State  prison." 
An  action  will  not  lie  in  the  supreme  court  to  obtain  leave  to 

»  Chap.  450,  p.  575,  Laws  1847.  ^'^  Huet  v.  Lord  Say,  Mac  Naghten's 

2  3  Code,  139.  Select  Cases,  155,  and  note,  pointing 

*  4  How.  Pr.  329.  out  the  difference  between  a   bill  of 

^4  How.  Pr.  339, 1  Denio,  50.  revivor  and  one  in  the  nature  of  revi- 

6  5  How.  Pr.  869.                       '  vor. 

6  6  How.  Pr.  220.  "  O'Brien  v.  Eagan,  1  Daer,  664 ; 

■■  See  WaldorpJi  v.  Bortle,  4  How.  Pr.  Freeman  v.  Frank,  10  Abb.  370. 

858.                                    '  i'2  Davis  v.  Duffle,  8  Bosw.  617,  18 

«  Requa  v.   Holmes,    19   How.   430 ;  Abb.  360,  affirmed,  3  Trans.  App.  54, 

Ei&sam  v.  Ilamilton,  20  id.  369.  4  Abb.  N.  S.  478  ;  Freeman  v.  Frank, 

»  Laws  1865,  p.  634.  10  Abb.  370. 


100  PARTIES   TO   THE  ACTION.  [CH.  II. 

issue  an  execution  upon  a  judgment  of  the  county  court/  The 
county  court  has  jurisdiction  of  an  action  for  that  purpose.* 
"Where,  after  decree,  an  infant  was  born  who  became  interested  in 
possession  and  was  a  necessary  party,  but  was,  by  inadvertence, 
overlooked,  and  sales  were  made  and  approved,  the  court  cannot 
revive  the  action  nunc  pro  tunc  with  the  same  effect  as  if  the  in- 
fant had  been  made  a  party  immediately  after  his  birth."  The 
effect  of  an  abatement,  by  death  or  otherwise,  is,  with  a  few  excep- 
tions, some  of  which  are  hereafter  noted,  to  suspend  all  pi'oceedings 
in  the  action  until  a  revivor  is  had.*  If,  after  abatement  of  a  suit, 
proceedings  be  taken  therein,  the  representatives  of  the  party 
against  whom  they  are  taken  may  set  them  aside.*  But  if  a  party 
die  after  judgment  in  foreclosure,  the  referee  may  sell  without  a 
revivor."  Otherwise  if  the  party  die  before  judgment.'  And  a 
judgment,  if  due,  may  be  entered  the  same  term,  or  during  the 
vacation.*  So  if,  after  a  cause  is  tried  or  an  appeal  argued,  a 
party  die,  the  decision  may  be  made  and  carried  out  7iu7iG  pro 
tunc  as  of  a  time  prior  to  such  death.*  If  a  plaintiff  in  eject- 
ment die  the  action  may  be  continued  in  the  name  of  his  heirs 
without  making  his  widow  a  party." 
)  V  In  an  action  to  have  mortgage  canceled  as  a  cloud  upon  title, 
^^^  if  the  plaintiff  die  the  action  should  be  revived  by  his  heirs  and 
^  his  representatives."  If  an  action  be  revived,  the  time  within 
which  the  opposite  party  is  required  to  do  any  act  will  not  com- 
mence to  run  until  the  representatives  of  the  deceased  parties  are 
substituted.''  And  if  notice  of  judgment  be  given,  and  the  party 
die  before  the  time  to  appeal  expire,  his  representatives  may 
revive  the  action  and  appeal."     The  decision  will  not  be  entered 

'  mies  V.  Perry,  29  How.  193.  ''Tlwmpson  v.  Dudley,  3  Edw.  Ch.  137. 

2  Laws  1864,  p.  1194.  «  2  R.  S.  359,  §  7 ;  2  Edm.  Stat.  372,  9 

3  Walker  v.    Walker,   Law    Rep.,  9  Wend.  455,  2  Bradf.  212,  1  id.  488,  17 
Equity  Cases,  663  ;  Scott  v.  Dunconibe,  Abb.  36  n. 

id.  664,  overruling  Q-runwell  v.  Garner,        '  Delaplaine  v.  Bergen,  7  Hill,  391 ; 

8  id.  355.     See  Eley  v.  Broughton,  2  Bemus  v.  Beekman,S  Wend.  667  ;  King 

Sim.  &  Stuart,  188  (1  Eng.  Ch.  Rep.  v.  Dunn,  21  id.  25d  ;  Beach  y.  Gregory, 

[Banks's  ed.] ;  L.  R.,  11  Eq.  364  )  2  Abb.  203. 

4  Jarn'.s  V.  Fdck,  14  Abb.  46  ;  Shaler,        ">  Ash  v.  Cook,  8  Abb.  389. 

etc.,  V.  Brewster,  32  N.  Y.  472  ;  Warren  "  Sutherland  v.  Rose,  47  Barb.  145 ; 

V.  Eddy,  13  Abb.  28.  Western    Reserve    Bank    v.    Potter, 

^Freeman  v.  Frank,   10  Abb.  371;  Clarke's   Ch.   432,   and  Moak's   note; 

Blodget  v.  Blodgct,  42  How.  19.  but  see  Wilson  v.  Wilson,  Law  Rep.,  9 

«  Lynde  v.    O'Donndl,  21  How.  34 ;  Equity  Cases.  452. 

Cazet  V.  Huhbell,  36  N.  Y.  677 ;  Hogan  '*  Beach  v.  Gregory,  2  Abb.  203. 

V.  Hoyt,  37  id.  302.  ^^ Andersonv.  Anderson,20Wend.5%?>, 


SEC.  II.]  OF   PAKTIES   PLAINTIFF.  101 

nunc  pro  tunc  if  the  delay  do  not  arise  from  the  act  of  the  court ; ' 
otherwise  if  it  did."  But  delay  of  a  referee  is  not  that  of  tho 
court.^  An  action  against  an  innkeeper  for  loss  of  the  goods  of 
a  guest  may  be  revived.*  Ordinarily,  if  a  party  die  after  com- 
mencement of  the  term,  the  court  will  not  try  a  case  nunc  pro 
t/ubnc^  although  the  whole  terra  is  considered  as  one  day.'  In 
New  York  the  statute  prohibits  such  a  trial.''  It  has  been 
held  *  that,  after  a  public  officer  goes  out  of  office,  an  action 
cannot  be  continued  against  him,  and  that  an  injunction  could 
not  be  deemed  longer  in  force.  The  case  concedes  the  action 
could  have  been  revived  in  the  name  of  his  successor,  and  we 
doubt  whether  it  is  sound  law.  As  to  the  officers  specified  in 
the  Revised  Statutes'  the  rule  is  clearly  otherwise."  The  stat- 
ute provides  for  revivor  against  the  husband  in  certain  cases," 
and  for  bringing  in  the  husband  of  a  female  plaintiff,  who  be- 
comes 'SAXoh  i^endente  lite^"^  but  either  party  may,  in  a  proper 
case,  proceed  to  bring  in  the  husband  under  the  Code.  If  a 
female  party  marry  'pendente  lite,  but  the  husband  is  not  a  neces- 
sary party,  a  simple  suggestion  of  the  fact  on  the  record  and  pro- 
ceeding against  her  under  her  new  name  will  be  sufficient. 

A  foreign  representative  cannot  revive  an  action.**  An  action 
which  has  abated,  if  it  survive,  may  be  revived  at  any  time. 
The  only  effect  of  delay  is  to  change  the  method  of  accomplishing 
the  revivor.  If  done  within  one  year  after  the  abatement  the 
remedy  is  by  motion  ;  if  after  that  time,  "  on  a  supplemental 
complaint."  The  theory  of  offering  a  premium  to  reviving 
within  a  year  is  to  encourage  diligence,  but  it  is  difficult  to  see 
why  it  is  any  more  the  duty  of  the  living  party  to  bring  the 

>  Ogden  v.  Lee,  3  How.  153.  «  People  v.  Wood,  2  Abb.  N.  S.  315. 

«  Ehle  V.  Moyer,  8  How.  344,  Eyre  v.  »  2  R.  S.  474,  3  Edm.  St.  494-496. 

EoUier,  13  Irish  Eq.  607.  'o  2  R.  S.  474,  §  100,  3  Edm.  St.  496 ; 

*  Saunders  v.  Plummer,  0.  Bridg.  333.  Manchester  v.  HeMngton,  10  N.  Y.  164 ; 
[This  case  can  be  read  with  much  profit  Colegrove  v.  Breed,  3  Denio,  135  ;  Over- 
by  those  desirous  of  acquiring  a  knowl-  seers  v.  Beedle,  1  Barb.  13;  Williams 
edge  of  the  common  law  as  to  revivor.]  v,  Keech,  4  Hill,  170  ;  overruling  Baker 

*  Kissam  v.  Hamilton,  30  How.  369,  v.  Norton,  3  id.  475. 

375.  11  3  R.  S.  388,  §  13,  3  Edm.  St.  403 ; 

*  Johnson  v.  Budge,  1  Cromp.,  Mees.     see  1  Burr.  Pr.  (3d  ed.)  383. 

&  Rose.  647.  12  2  R.  S.  387,  388,   2  Edm.  St.  403, 

*  Manchester  v.  Rerrington,  10  N.  Y.  403,  ^§  8,  9,  10, 11,  12  ;  see  1  Burr.  Pr. 
164.  (3d  edO  883,  384. 

'  2  R.  S.  387,  §  5,  3  Edm.  Stat.  402,        i^  Warren  v.  Eddy,  13  Abb.  28. 
Eissam  v.  HamUton,  30  How.  374. 


102  PAETIES   TO   THE   ACTION.  [CH.  II. 

action  to  a  speedy  termination  than  of  the  representatives  of  the 
deceased.  The  latter  provision  is  useless  and  unfortunate.  In 
many  cases  representatives  are  not  appointed  within  a  year,  and 
the  opposite  party  has  no  power  to  coerce  such  an  appointment. 
If  the  plaintifl'  die  he/ore  judgment,  and  the  defendant  seek  a 
revivor,  he  cannot  file  a  "  supplemental  complaint."  ^  K  the  suit 
were  of  an  equitable  character,  he  could  proceed  under  the 
Kevised  Statutes,"  which  do  not  limit  the  period  for  such  proceed- 
ing ;  but,  if  an  action  at  law,  it  is  not  easy  to  see  how  he  could 
force  a  revivor.^  The  court  might  order  that  the  representatives 
file  a  supplemental  complaint,  or  that  the  action  be  dismissed ;  * 
but  this  might  not  answer  his  purpose,  as,  in  order  to  obtain  jus- 
tice, it  might  —  as,  for  instance,  in  replevin,  where  plaintiff  took  the 
property  —  be  absolutely  necessary  that  he  have  power  to  com- 
pel a  revivor.  It  is  doubtful  whether  a  defendant  can,  before 
judgment,  compel  a  revivor  as  a  matter  of  right  after  the  year 
has  expired.^ 

It  would  be  far  better  to  strike  out  of  the  section  the  words 
"  within  one  year  thereafter,  or  afterward  on  a  supplemental  com- 
plaint," and  "  within  one  year  after  said  death,  or  afterward  ou 
supplemental  complaint."  The  provision  requiring  a  supple- 
mental complaint,  after  one  year,  does  not  apply  to  a  revivor 
in  the  court  of  appeals,*  and  probably  not  to  any  court  after 
judgment?  The  representatives  of  a  defendant  have,  afterjudg- 
ment,  an  absolute  right  to  revive  the  action.*  By  the  allowance  of  an 
attachment  there  is  a  sufficient  commencement  to  authorize  a  revi- 
vor,* and  so  to  enforce  an  equitable,  lien.'"  A  suit  cannot  be  re- 
vived, where  costs  only  are  involved,  unless  they  are  taxed."  If 
more  than  a  year  has  expired  since  the  death  of  the  party,  the  court 
has  no  power  to  revive  the  action  by  motion,'''  but  the  party  may  file 

*  Banta  v.  Marcelhis,  3  Barb.  375,  2  Schuclmrdt  v.  Bemiers,  28  How.  514, 
Barb.  Ch.  Pr.  41.  but  see  Livermore  v.  Baiiibridge,   61 

2  2  E.  S.  185  ;  2  Edm.  St.  192 ;  Reri-    Barb.  358. 

mck  V.  Cooper,  10  Paige,  305  ;  Rogers  ^  Hastings  v.  McEinley,  8  How.  175 ; 

V.  Patterson,  4  id.  413-418 ;  Matter  of  Anderson  v.  Anderson,  20  Wend.  585. 

Bornsdorf,  41  Barb.  211.    [Tbe  method  ''Rogers  v.  Patterson,  4  Paige,  413416. 

of  aflFecting  sucb  a  revivor  is  pointed  out  *  SrhucJiardt  v.  Rentiers,  28  How.  514. 

in  jReywa  V.  iZi?^TOes,  19  How.  433  et  seq.]  ^  Thacher  v.  Bancroft,  15  Abb.  243. 

3  Ridgway  v.  Bulkley,  7  How.  269.  i"  Broicn  v.  Nichols,  9  Abb.  N.  S.  1. 

*  Oreene  v.  Bates,  7  How.  296,  but  "  TJiorn    v.    Pitt,    Mac   Nagbten's 
see  1  Hare,  617,  5  Irisli  Eq.  Rep.  446,  Select  Cases,  158  n. 
BLACKBxmNE,  M.  R.  '*  Matter  of  Bornsdorf,  17  Abb.  168 

»  Keene    v.  Lafarge,    1  Bosw.  671 ;    41  Barb.  211. 


Sec.  II.]  OF   PARTIES   PLAINTIFF.  103 

a  supplemental  complaint,  though  not,  as  a  matter  of  course,  with- 
out leave  of  the  court.'  If  defendant  interpose  a  counter-claim, 
the  action,  on  the  plaintiff's  death,  may  be  revived  against  the 
wishes  of  his  representatives.*  If,  on  the  death  of  a  party,  the 
cause  of  action  survive  to  or  against  some  other  parties,  so  that  a 
perfect  decree  or  judgment  as  to  every  part  of  the  litigation  can 
be  made  between  the  surviving  parties,  the  suit  does  not  abate  as 
to  the  survivors,  and  no  revivor  is  necessary  f  as  where  several 
creditors  file  a  bill  on  behalf  of  themselves  and  all  other  creditors, 
and  one  die,*  otherwise  if  brought  on  behalf  of  themselves  aione.* 
Upon  enteriug  final  judgment,  a  suggestion  of  the  death  of  the 
deceased  parties  should  be  made  upon  the  record,  in  conformity 
to  the  statute.®  In  an  action  by  husband  and  wife  against  husband 
and  wife,  for  slander  spoken  of  one  of  the  women  against  the  other, 
if  one  of  them  die  before  verdict  the  action  abates.'  If  one  of  two 
partners  give  a  satisfaction  of  a  partnership  judgment,  which  is 
set  aside  as  to  the  other  partner,  but  allowed  to  stand  as  to  the 
one  who  executed  it,  and  the  plaintiff  as  to  whom  it  is  not  set 
aside  die,  his  representatives  may  revive.^  An  action  for  wrong- 
fully causing  the  death  of  one  survives  against  the  wrong-doer's 
representatives.^  If  an  action  be  commenced  in  the  name  of  a 
dead  man  his  representatives  cannot  revive.'" 

In  the  case  of  death  of  a  plaintiff'  after  judgment  the  action 
may  be  revived  by  an  action  in  the  nature  of  a  scire  facias  ;^^  but 
his  representatives  cannot  issue  execution  by  leave  of  the  court, 
nor  can  they  revive  the  judgment  by  a  motion  under  section  121 
of  the  Code;"  nor  against  a  defendant  who  died  after  judgment.'^ 

1  Beach  v.  Reynolds,  64  Barb.  506 ;  ^o  ciay  v.  Oxford,  L.  R.,  2  Ex.  54. 

overruling   Matter  of   Bornsdorf,  17  "  Brothersoii  v.  Consalus,  26  How. 

Abb.  168 ;  41  Barb.  211 ;  Roach  v.  Le-  224. 

fargc,  43  Barb.  616.  '^  Ireland  v.  Litchfield,  8  Bosw.  634; 

^  Livermore  v.  Bainbridge,  42  How.  22   How.    178  ;    Thurston  v.   King,  1 

53.  Abb.   126  ;    Schuschard   v.   Reimer,   1 

^  Lachaise  v.  Libby,  13  Abb.  6 ;  Leg-  Daly,  460 ;   Jay  v.  Marline,  2  Duer, 

gett  V.  Dubois,  2  Paige,  211.  654  ;  Cameron  v.  Young,  6  How.  372; 

*  Leigh  v.  Thomas,  2  Vesey  Sen.  312.  W?ieeler  v.  JJakin,  12  id.  537 ;  Alden 
5  Baddy  v.  Kent,  1  Merrivale,  361.  v.  Clark,  11  id.  209 ;  Frink  v.  Morri- 
8  2  R.  S.  386,  S  1  ;  2  Edm.  St.  401.  soji,  13  Abb.  80 ;  Matter  of  Bentley,  16 
'  Cowley  V.  Poulton,  Hobart,  129  a,  id.  89  and  note,  p.  90 ;  Dames  v.  Skid' 

Code,  §  121.  '        more,  5  Hill,  501. 

8  Hackett  v.  Belden,  40  How.  289.  '^  i^ 

*  Tertore  v.  Wiswa,ll,  16  How.  8,  but 
Bee  Vittum  v.  Oilman,  48  N.  H.  416. 


104  PARTIES   TO   THE  ACTIOlSr.  [CH.  II. 

If  it  be  sought  to  sell  lands,  by  virtue  of  a  lien  arising  from  the 
docketing  of  a  judgment  after  the  death  of  a  party,  an  action 
must  be  commenced  to  obtain  an  execution  to  be  issued  in  the 
name  of  the  representatives  of  the  judgment  creditor  against  the 
representatives  of  the  judgment  debtor,  to  be  levied  of  any  lands 
which  the  judgment  debtor  held  when  the  judgment  was  dock- 
eted/ So,  on  reviving  a  suit  by  supplemental  complaint  against 
heirs  in  possession  to  charge  them  with  rents  and  profits,  a  new 
suit,  such  as  was  formerly  a  bill  in  the  nature  of  a  bill  of  revivor, 
must  be  commenced." 

If  a  receiver  die  during  the  pendency  of  an  action,  his  successor 
may  revive  the  action  by  supplemental  complaint.'  The  practice 
as  to  filing  a  supplemental  complaint  is  that  of  the  late  court  of 
chancery.*  A  summons  for  rehef  must  accompany  the  supple- 
mental complaint,  and  must  be  served  upon  the  party  sought  to 
be  brought  in  and  not  the  attorney  of  the  former  party.'  As  to 
what  actions  survive  and  may  be  continued,  see  ante  {marginal)^ 
page  111  et  seq.  In  actions  of  tort  the  court,  on  granting  a  new 
trial,  sometimes  imposes  a  condition  that  the  action  shall  not 
abate  in  case  of  death  of  one  of  the  parties.*  II  a  revivor  be  had 
all  proceedings  already  taken  stand  in  full  force.' 

The  reader  who  wishes  to  investigate  the  effect,  at  common 
law,  and  prior  to  the  Code,  of  the  death,  marriage  or  other  dis- 
ability of  a  party  to  an  action,  and  when  and  how  a  revivor 
could  be  had  at  law,  will  find  the  desired  information  in  Bou- 
vier's  Law  Dictionary,  title  Abatement;  Bacon's  Abridgment, 
title  Abatement ;  Jacobs'  Law  Dictionary,  same  title ;  Graham's 
Practice  (2d  ed.),  806-816,  965;  1  Burrill's  Practice  (2d  ed.), 
281-284;  2  id.  165-167;  1  Chitty's  Pleadings,  19;  Vittum  v. 
Gilman,  48  IS".  H.  415.  And  in  equity,  2  Daniell's  Chancery 
Practice.  (3d  Am.  ed.)  1586-1626;  1  Barbour's  Chancery 
Practice,  674-685;  2  id.  35-58;  Story's  Equity  Pleadings,  §§ 
329-331,  354r-387. 

As  to  the  difi'erence  between  abatement  in  actions  at  law  and 

1  Id.  N.  S.  594 ;  Griffith  v.  WUliams,  1  C.  & 

^  Taylor  v.  Taylor,  43  N.  Y.  585.  J.  48  ;    Freeman  v.  Basher,  13  Q.  B. 

»  Palmer  v.  Murray,  18  How.  545.  780,  66  Eng.  Com.  Law. 

*  Green  v.  Bates,  7  How.  Pr.  296 ;  «  Id. 

Code,  §  468.  '  Moore  v.  Hamilton,  48  Barb.  120 

*  Kay  V.  Thompson,  10  Am.  L.  Reg.    44  N.  Y.  666. 


SEC.  III.]  OF   PARTIES   DEFENDANT.  105 

in  equity,  see  Boiwier's  Law  Dictionary,  title  Abatement.  Lahey 
7.  Brady,  1  Daly,  444.  As  to  abatement  and  revivor  under  the 
Revised  Statutes,  many  of  the  provisions  of  which  are  still  in  force, 
see  2  R.  S.  386-388;  2  Edm.  St.  401;  2  R.  S.  114;  2  Edm.  St. 
118.  Under  the  Code,  see  Voorhies'  Code,  §  121,  and  Mr.  Town- 
shend's  notes.     Wait's  Code,  §  121,  and  Mr.  Wait's  notes. 


[*149]  *  SECTION  III. 

OF  PARTIES  DEFENDANT. 

In  regard  to  the  defendant  in  a  civil  action  the  Code  provides : 

"Any  person  may  be  made  a  defendant  who  has,  or  claims,  an 
interest  in  the  controversy,  adverse  to  the  plaintiff,  or  who  is  a  neces- 
sary party  to  a  complete  determination  or  settlement  of  the  questions 
involved  therein;  and,  in  an  action  to  recover  the  possession  of 
real  estate,  the  landlord  and  tenant  thereof  may  be  joined  as  defend- 
ants ;  and  any  person  claiming  title  or  a  right  of  possession  to  real 
estate  may  be  made  parties  plaintiff  or  defendant,  as  the  case  may 
require,  to  any  such  action."^ 

This  general  rule  which  the  Code  prescribes  to  regulate  the 
■oractice,  in  respect  to  making  parties  defendants,  is,  in  effect,  a 
re-enactment  of  the  equity  rule  of  pleadings,  and  was  not,  proba- 
bly, intended  to  prescribe  any  other,  or  different  principle,  than 
heretofore  tested  the  suflticiency  of  pleadings  in  equity.  And 
first,  it  may  be  observed  that  this  section  does  not  mean  to  leave 
the  plaintiff  at  liberty  to  select  just  such  parties  as  he  chooses  to 
affect  by  the  judgment,  and  none  others.  If  there  are  necessary 
as  well  as  proper  parties  to  an  action  as  plaintiffs,  so,  too,  there  are 
necessary  as  well  as  proper  parties  defendants.  That  the  Code 
clearly  contemplates  this  is  apparent  from  the  fact  that  provision 
is  made  for  raising  an  objection  either  by  demurrer  or  answer, 

that  there  is  a  "  defect  of  parties,  plaintiff  or  defendant^ ' 
[*150]       *  In  commenting  upon  this  section,  in  the  case  of  Vam. 

Rome  V.  Emerson^  at  a  general  term  in  the  fourth  dis- 
trict. Justice  Cadt  remarks  that,  in  his  opinion,  the  section  relates 
to  causes  which  formerly  belonged  to  the  court  of  chancery,  and 

»  Code,  ^  118.  '  13  Barb.  S.  C.  537. 

'  Code,  ^  144,  and  see  ante,  marg.p. 
134. 

14 


106  PARTIES   TO   THE  ACTION.  [CH.  II, 

which  required  all  persons  to  be  made  parties,  so  tliat  a  complete 
decree  or  judgment  can  be  made.  We  shall  presently  inquire 
whether  it  also  extends  to  causes  of  common-law  origin,  and  was 
intended  to  prescribe  a  more  enlarged  rule  as  to  defendants  than 
the  common  law  admitted.  ISTo  doubt  it  was  intended  to  adopt 
substantially  the  equity  rule  as  to  parties,  and  in  that  light  it  will 
])e  proper  lirst  to  consider  it. 

The  parties  who  are  to  be  made  defendants  are  the  parties  in 
interest,  the  interest  involved  in  the  issue,  and  who  necessarily 
are  to  be  affected  by  the  judgment.  These  were  the  proper  and 
only  proper  parties  to  the  action  in  equity ;  and  so,  also,  under  the 
Code.  Thus,  in  Wendell  v.  Van  Rensselaer,^  it  was  ruled  by  the 
chancellor  that,  in  a  bill  filed  for  the  discovery  of  the  defendant's 
claim  to  lands  owned  by  the  complainant,  and  to  be  quieted  in 
his  possession,  the  complainant  having  previously  sold  part  of  the 
lands  to  persons  who  were  not  made  parties  to  the  suit,  such  per- 
sons were  not  necessary  parties.  True,  they  had  an  interest  in 
the  point  or  question  litigated,  namely,  whether  the  defend- 
ants' deed,  covering  their  lands  as  well  as  the  plaintiff's,  was 
valid  or  not ;  but  this  alone  did  not  make  them  necessary  par- 
ties. The  general  rule,  requiring  all  persons  interested 
[*151]  to  be  parties,  should  be  restricted,  says  the  *  chancellor,  to 
cases  of  parties  to  the  interest  involved  in  the  issue  and 
necessarily  to  he  affected  hy  the  decree.  So  in  Whelan  v.  Whelan^ 
in  the  court  of  errors,  it  was  held,  that  in  a  bill  filed  against  one 
to  set  aside  a  deed  of  bargain  and  sale  of  land  absolute  on  its  face, 
though  the  parties  agreed  by  parol  that  it  should  be  in  trust  for 
another,  such  trust  being  void,  the  latter  had  no  interest  in  the 
issue,  so  as  to  be  a  necessary  party. 

The  equity  rule  did  not  permit  a  complainant  to  demand  sev- 
eral matters  of  different  natures  against  several  defendants.  The 
defendants  should  have  a  common  interest  centering  in  the  point 
in  issue  / '  but  where  one  general  right  is  claimed,  parties  inter- 
ested in  the  subject-matter  may  be  joined  as  defendants,  though 
they  have  separate  and  distinct  rights ;  as  in  the  case  mentioned 
of  a  bill  to  quiet  a  general  right  of  fishery  against  several  defend- 

'  Johns.  Ch.  349.  »  Fellows  v.  Fellows.  4  Cow.  700. 

« 3  Cow.  538. 


8E0.  III.]  OF   PAETIES   DEFENDANT.  107 

ants,  although  there  was  no  privity  between  them  and  the  defend- 
ants, and  they  claimed  distinct  rights.'  And  the  correct  rule  on 
the  subject  seems  to  be  laid  down  by  the  chancellor  in  Brinker- 
hoff  V.  Broion,^  that  "  a  bill  against  several  persons  must  relate  to 
matters  of  the  same  nature,  and  having  a  connection  with  each 
other,  and  in  which  all  the  defendants  are  more  or  less  concerned, 
though  their  rights  in  respect  to  the  general  subject  of  the  case 
may  be  distinct."  The  rule  that  all  parties  entitled  to  liti- 
gate the  same  questions  over  again  in  a  new  proceeding 
[*152]  ^instituted  by  them  or  either  of  them,  are  not  only  proper 
but  necessary  parties,^  and,  generally,  the  rule  that  all  par- 
ties in  interest,  that  is,  having  a  right  in  the  subject-matter  of 
the  controversy,  which  might  be  affected  by  the  judgment,  must 
be  made  parties,  though  not  applicable  to  bills  for  discovery, 
applied  to  all  suits  for  mere  relief.  A  decree  would  not  be 
made  unless  all  such  parties  were  before  the  court,*  and  the 
defendant  was  at  liberty  to  take  the  objection  by  demurrer  or 
answer ;  and  the  principle,  it  is  presumed,  is  just  as  applicable 
now  as  it  was  before  the  Code. 

There  is  a  class  of  cases,  however,  where  persons  who  are  not 
absolutely  necessary  parties,  may  be  made  defendants  at  the  elec- 
tion of  the  complainant.  As  if  a  trustee  has  parted  with  the 
trust  fund,  the  cestui  que  trust  may  proceed  against  the  trustee 
alone  to  compel  satisfaction,  or  the  fraudulent  assignee  may  be 
joined  with  the  trustee  at  the  election  of  the  complainant.^  And 
so  also  in  a  class  of  cases  which  has  already  been  noticed,  namely, 
in  which  the  committee  of  a  lunatic,  or,  perhaps,  other  trustee  of 
an  express  trust,  is  made  a  party  defendant  in  an  action  concern- 
ing the  personal  property  of  the  cestui  que  trust.  So  too  in  some 
special  cases  which  will  be  hereafter  noticed,  of  assignor  and 
assignee,  in  which  the  assignee  as  plaintiff  would  have  his  election 
to  make  the  assignor  a  party  defendant.  And  in  a  vari- 
[*153]  ety  of  other  cases,  as  for  partition,  when  the  *plaintiff  may 
at  his  election  make  a  creditor  having  a  specific  lien,  etc., 

'  Mayor  of  York  v.  PilUngton,  1  Atk.  Cord's  Ch.  301,  7  Conn.  342,  and,  gen- 

282.  erally.  Story's  Eq.  PI.  and  Edwards  on 

2  6  Johns.  Ch.  139.  Parties. 

*  La  Grange  v.  Merrill  and  otJiers,  3  ^  Bailey  v.  Inglee  and  others,  3  Paige, 
Barb.  Ch.  625.  278. 

*  Id. ;    see,  also,  4  Paige,  64,   2  Mc- 


108  PARTIES   TO   THE  ACTION.  [CH.  II. 

a  party  ;  or  in  an  action  to  foreclose  a  mortgage,  where  the  mort- 
gagee is  onl  J  a  proper  and  not  a  necessary  party,  in  action  to  fore- 
close a  mortgage  against  his  grantee,  and  many  other  similai 
cases,  some  of  which  will  be  hereafter  alluded  to.  It  is  to  be 
observed,  however,  that  it  is  by  no  means  an  easy  matter  to  trace 
accurately  the  dividing  line  between  necessary  and  vnereij  proper 
parties.  Each  case  must,  in  a  greater  or  less  degree,  depend  upon  the 
individual  facts  and  circumstances  upon  which  it  rests ;  and  it  would 
manifestly  be  impossible  within  the  limits  of  this  work  to  go  into  a 
full  and  minute  discussion  of  the  whole  subject.  The  general  rules 
drawn  from  the  cases  which  have  already  been  cited  in  this  section 
will  serve,  in  some  degree  at  least,  to  indicate  the  ordinary  practice. 

[A  favored  class  of  actions,  in  courts  of  equity,  were  those 
where,  by  bringing  in  all  the  parties  interested  in  the  particular 
subject-matter,  they  could  do  complete  and  ample  justice  to  them  all 
in  one  suit,  and  thus  prevent  excessive  litigation.  This  doctrine 
grew  into  such  favor  that  it  was  alone  sufficient,  in  many  cases,  to 
confer  jurisdiction.^  There  is  no  restriction  that  all  shall  claim 
in  the  same  capacity,  or  even  under  the  same  instrument  or  con- 
veyance. Where  different  persons  are  interested  in  an  account, 
although  not  in  the  same  right,  they  should  all  be  joined  ;  as,  for 
instance,  heirs  a/nd  personal  representatives,  residuary  legatees 
and  distributees,  mortgagors  and  mortgagees  and  their  assignees  5 
persons  receiving  and  holding  assets  in  succession  in  virtue  of 
their  representative  character,  and  persons  having  distinct  inter- 
ests in  the  same  security,  either  jointly  or  in  succession." 

On  a  bill  filed  by  an  heiress  at  law  to  set  aside  conveyances  of 
real  and  personal  estates  on  the  ground  of  fraud,  undue  influence 
and  want  of  consideration,  the  want  of  proper  parties  to  represent 
the  personal  estate,  comprised  in  the  impeached  conveyances,  is  a 
fatal  defect."  Several  proprietors  of  distinct  lands  and  of  separate 
parts  of  a  water-course  have  such  a  community  of  interests  that 
they  may  join  in  a  suit  to  restrain  a  diversion.*     So,  several  bene- 

'  1  Story's  Eq.  Jur.,  §  457.  id.  45  ;  EUl  v.  Lane,  L.  R.,  11  Eq .  215 ; 

2  Story's  Eq.  PI.,  §  219  ;  Riclitmyer  Walworth  v.  Holt,  4  Myl.  &  Cr.  619. 

V,  Richtmyer ,   50    Barb.  55  ;    Iddings  ^  Farmer  v.  Farmer,  1  House  Lords 

V.  Bruen,  4  Sandf.  Ch.  224,  and  see  C2ises,12i;  Wilkinson  \.Fowkes,^YL&rQ 

note  to  Marcos  v.  Pebrer,  3  Sim.  466 ,  (41  Eng.  Ch.  Rep.)  193. 

6  Eng.  Ch.  Rep.  (Banks's  ed.)  iBlain  v.  *  Reid  v.  Oifford,   Hopk.    Ch.   416; 

Agar,  2   Sim.  37 ;   Green  v.  Barrett,  1  Belknap  v.  Trimble,  3  Paige,  577. 


SEC.  III.]  OF   PAETIES   DEFE^-DANT.  109 

ficiaries  under  the  same  trust,  tliougli  their  interests  be  not  joint, 
may  join  as  complainants  in  one  suit.'  Both  sets  of  plaintiffs 
would  prove  the  same  fact,  to  wit,  the  creation  of  the  trust  as  the 
foundation  of  their  action,  and  all  their  rights  could  be  as  well 
and  better  adjusted  in  one  action/  And  one  stockholder,  in 
behalf  of  himself  and  all  others  similarly  interested,  may  maintain 
an  action  against  the  directors  and  treasurer  of  the  corporation  to 
prevent  the  payment  of  an  illegal  claim.'  The  plaintiff,  in  such 
a  case,  must  show  how  he  derived  title.*  So  a  creditor  of  a 
mutual  insurance  company  may  maintain  a  bill  in  equity  against 
the  officers  of  the  company  who,  having  funds  of  the  company  in 
their  hands  to  pay  the  plaintiff's  claim  on  the  company  for  a  loss, 
have  neglected  and  refused  to  pay  it,  and  fraudulently  applied  the 
funds  to  other  purposes.  But  the  company  is  a  necessary  party  ;^ 
and  a  stockholder  may  prevent  the  using  of  a  subscription  for  anj^ 
except  the  purposes  for  which  it  was  raised.'  Though  the  action 
be  in  form  in  behalf  of  all  the  stockholders,  it  may  be  maintained 
although  the  plaintiff  be  the  only  stockholder  who  insists  upon  the 
relief.^  So  creditors  who  claim  under  separate  judgments  may 
pursue  the  debtor's  property,  although  transferred  by  different 
conveyances  and  at  different  times,  and  to  different  persons.* 

Legatees  must  make  all  persons  parties  who  may  be  affected  by 
the  action.'  So  where  parties  having  separate  and  distinct  inter- 
ests have  been  enjoined  in  one  suit,  their  cause  of  action  grows 
out  of  the  fact  that  but  one  bond  was  given  and  not  the  nature 
of  their  interests,  and  all  may  join  as  plaintiffs  in  an  action 
upon  it ; "  but  if  their  interest  in  the  recovery  be  several  they 
TYiay  bring  separate  actions." 

*  Robinson  v.  Smith,  3  Paige,  222 ;        ^  Lyman  v.  Bonney,  101  Mass.  562. 
Egberts  v.   Wood,  id.  517.  *  Bagshaw  v.  Eastern,  etc.,  2  MacN. 

2  Story's  Eq.  PI.,  |;§  207, 208, 210, 214.     &  G.  389  and  cases  in  note  to  Little, 

3  Butts  V.  Wood,  37  N.  Y.  319  ;  Kerr    Brown  &  Co.'s  ed. 

on  Inj.  548,  558  ;    see  post,  marg.  p.  '  White  v.  Carmarthen,    1   Hem.  «& 

173  ;  Hichcns  v.  Congreve,  4  Russell,  562  Miller,  786. 

and  note,  p.  577  (Banks's  ed.) ;   Walker  *  Beed   v.  Stryker,  12  Abb.  47,    re- 

V.  Bevercaux,  4  Paige,  229;    Oray  v.  versing  S.  C.,6  id.  109  ;  TFhrfe  v.  ^;/67i(?r, 

Chaplin,  2  Sim.  &  Stu.  267  ;    Dodge  v.  4  Bosw.  537  ;  Bank,  etc.,  v.  Suydam,  6 

Woolsey,  18  How.  (U.  S.)  321 ;  Samuel  How.  381. 

V.  Holliday,  Woolw.  C.  C.  400 ;   Bag-  »  Tonnelle    v.   Hall,    3     Abb.     206  ; 

ehaw  V.  Eastern,  etc.,  2  MacN.  &  G.  389  ;  Story's  Eq.  PL,  §§  203-207. 

but  see    'Taunton  v.  Royal  Ins.  Co.,  2  '"  Loomis   v.  Broion,  16   Barb.  325, 

Hem.  &  Miller,  135.  330-332  ;  Packard  v.  Hill,  7  Cow.  434. 

*  Walburn  v.  Ingilby,  1  Myl.  &  "  James  v.  Emery,  5  Price,  529  ;  1 
Keen,  61.  Pars,  on  Cont.  (5th  ed.)  11-20. 


110  PARTIES   TO  THE  ACTION".  [CH.  II. 

AH  tlie  heirs  should  be  sued  jointly  for  a  debt  against  the 
intestate.^  So  all  the  holders  of  fraudulent  stock  overissued  by 
an  officer  of  a  corporation."  All  the  legatees  under  a  will  may 
bring  the  action  against  all  persons  who  are  or  may  become  liable 
to  pay,  and  each  have  a  separate  judgment  for  his  legacy/  And 
whei"e  trust  funds,  or  funds  out  of  which  the  legacy  should  have 
been  paid,  had  been  mingled  with  her  own  by  deceased,  and  had 
thus  passed  to  others,  it  was  held,  they  might  be  made  parties,  and 
a  decree  had  against  them  for  such  portions  of  the  property  as 
they  had  received.'*  When  a  fund  is  in  the  hands  of  a  trustee, 
which  he  is  bound  to  distribute  to  different  persons  in  proportions 
which  are  not  ascertained,  all  interested  in  the  distribution  are 
necessary  parties  to  an  action  against  the  trustee.' 

A  plaintiff  may  unite  a  cause  of  action  as  executrix  with  one 
as  devisee,  where  both  accrued  under  a  contract  made  by  the  testa- 
tor with  the  defendant,  growing  out  of  the  same  matter  ;  as 
devisee  for  the  rent  of  a  farm,  leased  to  the  defendant  by  the 
testator,  which  had  accrued  subsequent  to  his  death ;  and  as  execu- 
trix for  breaches  of  covenants  in  the  lease,  to  repair  the  build- 
ings.' 

So  a  cause  of  action  on  a  contract  with  the  testator  and  one  on  a 
contract  made  with  the  representative,  as  such  for  both,  on  recovery, 
will  be  assets.'  So  if  there  are  two  executors  and  one  die,  in  a 
suit  for  administration  of  assets,  the  representative  of  the  deceased 
executor  and  the  surviving  executor  may  be  joined  as  defendants.* 

ISTot  so,  however,  when  relief  is  sought  individually,  and  as 
trustee,  or  in  a  representative  capacity ;'  nor  when  relief  is  sought 
against  a  part  of  several  defendants  as  trustees,  and  others  indi- 
vidually ;'"  nor  can  plaintiff  imite  a  claim  by  him  as  an  individual, 

1  Kellogg  v.  Olmstead,  6  How.  487.  '  Partridge  v.   Court,  5  Price,  412' 

^  Keto  York,  etc.,  v.  ScJmyler  et  al.,  affirmed,  Ex.  Cham.  7  id.  591. 

17  N.  Y.  592,  7  Abb.  41,  38  Barb.  534,  »  Holland   v.   Prior,    Cooper's  Rep., 

34  N.  Y.  30,  34  How.  302  ;  see  Bruff  Temp.  Broughanj,  426. 

V.  Mali,  36  N.  Y.  200  ;  Henning  v.  New  »  Latting  v.  Latting,  4  Sandf.  Cli.  31 ; 

York,  etc.,  9  Bosw.  283.  Landau  v.  Levy,  1  Abb.  376 ;  Benjamin 

8  Towner  v.   Tooley,  38  Barb.    598,  v.  Taylor,  12  Barb.  328 ;  McMahon  v. 

606-608.  Allen,  3  Abb.  89,  12  How.  40,  1  Hilt. 

*  Trustees  v.  Kellogg,  16  N.  Y.  84.  103  ;   Warth  v.  Raddc,  18  Abb.  396,  28 

*  General,  etc.,  v.  Benson,  5  Duer,  168.  How.  230 ;  but  see  Smith  v.  Oeortner,  40 

*  Armstrong  v.  Hall,  17   How.   76 ;  How.  185. 

Pugsley  v.  Aikin,  11  N.  Y.  494 ;  Benja-        '"  Alger  v.  Scovill,  6  How.  131, 1  Code 
min  V.  Tayloi',  12  Barb.  328.  R.  N.  S.  303  ;  RicMmyer  v.  Richtmyer, 

50  Barb.  55. 


SEC.  III.]  OF   PARTIES   DEFENDANT.  11] 

and  one  in  a  representative  capacity  ;^  nor  as  an  individual  and 
as  one  of  the  public  generally  f  nor  against  all  of  the  defendants 
jointly,  and  one  or  some  of  the  defendants,  severally/  But  a 
plaintiflP  may  unite  a  cause  of  action  against  the  defendant  for  a 
legacy  to  plaintiff  on  account  of  lands  devised  to  him,  subject 
thereto,  and  which  devise  he  has  accepted,  with  a  claim  for  iiioney 
had  and  received,  goods  sold  and  delivered,  and  for  rent  due  plain- 
tiff from  defendant.* 

In  partition,  the  wife  of  an  owner  entitled  to  dower  is  a  neces- 
sary party  f  but  in  a  suit  for  partition  between  tenants  in  common 
of  an  estate  carved  out  of  a  fee,  the  owner  of  the  fee  is  not  a 
necessary  party.'  The  owners  of  separate  animals  cannot  be  sued 
jointly  for  an  injury  done  by  them.'  Nor  can  different  owners  as 
tenants  in  common  of  a  pew,  who  agreed  to  pay  toward  rebuild- 
ing the  church,  in  proportion  to  their  interests.*  Where  several 
legatees  gave  a  power  of  attorney,  held,  each  could  sue  for  his 
share ;'  and  one  of  several  heirs  may  sue  for  his  share  of  the  rent 
of  real  estate  leased  by  his  ancestor.*"  One  creditor  may  sue  with- 
out joining  another  whose  share  of  the  debt  has  been  paid." 

The  same  person  cannot  be  both  plaintiff  and  defendant  ;'*  nor 
can  one  trustee  of  a  religious  corporation  be  sued  by  his  co-trustee 
as  a  trespasser  in  respect  to  its  property,  until  he  is  divested  of  his 
character  and  authority  as  such,"  But  where  A  was  a  partner  of  two 
firms,  held,  the  creditor  firm  might  sue  the  debtor  firm  in  equity 
upon  an  account  stated,  making  A  a  defendant  ;'*  otherwise  at  law, 

'  Hall  V.  Fuller,  20  Barb.  441 ;  Lucas  562  ;  Auchmuty  v.  Ham,  1  Denio,  495; 

V.  N.  T.  Central  R.  B.,  21  id.  245.  Partenheimer  v.  Van  Order,  20  Barb. 

2  Warwick  v.  Mayor,  38  Barb.  210,  479 ;    Wilbur  v.  Hubbard,  35  id.  803. 

7  Abb.  265.  The  curious   reader  will   find  a  very 

*  Badgers  v.  Badgers,  11  Barb.  595  ;  amusing  article  upon  the  latter  case  in 
Viall  V.  Matt,  37  id.  208  ;  Barnes  v.  the  New  York  Daily  Transcript,  for 
Smith,  16  Abb.  420 ;  Wells  v.  Jewett,  11  March  26,  1863  entitled,  "  In  Be  Huh- 
How.  242 ;  LeBoy  v.  Shaw,  2  Duer,  626,  bard's  Dog." 

*  Oridley  v.  Oridley,  24  N.  T.  130,  «  ^^5  PauVs  Church  v.  Ford,  34  Barb. 
reversing  33  Barb.  250.  16  ;  but  see  Ballard  v.  Burnside,  49 

«  1  Story's  Eq.  Jur.,  §  656  ;  Ripple  v  id.  102. 
Oilborn,  8  How.  456 ;  Gordon  v.  Ster-        '  Power  v.  Hathaway,  43  Barb.  215. 
ling,  Ms.  Gen.  T.,  6th  Dis.,  Sept.,  1857,        '"  Jones  v.  Felch,  3  Bosw.  63. 
reversing  S.  C,  13  How.  405 ;  People        "  Bishor)  v.  Edmiston,  16  Abb  466. 
V.  Woods,  2   Code  R.  18 ;   Jackson  v.         "  6  Pick.  316,  11  Met.  399,  19  Pick. 

Edicards,  7  Paige,  386,  391,  402-411,  73;  Morley  v.  French,  2  Cush   130   2 

disapproving  Matthews  v.  Matthews,  1  Greenl.  Ev.,  §  478 ;  Nash  v.  Bussell,  H 

Edw.  Ch.  565.  Barb.  558. 

«  Canfield  v.  Ford,  16  How.  473,  ^^ Trustees,  etc., v.  Stewart, 211 'Q&rh.mZ, 
affirmed,  28  Barb.  336.  1*  Cole  v.  Beynolds,  18  N.  Y.  74 .  Trad. 

''  Van  Steenburgh  v.  Tobias,  17  Wend,  ers'  Bank  v.  Bradner,  43  Barb.  379. 


112  PAETIES   TO  THE  ACTION.  [CH.  II. 

if  the  account  had  not  been  stated;*  but  it  is  not  a  bar  to  a 
recovery  that  one  of  several  defendants  has  become  possessed  of 
the  right  of  action  prosecuted  against  him  and  his  co-defendants 
unless  his  name  appears  upon  the  record  both  as  a  plaintiff  and 
defendant ;°  and  an  executor  may  sue  his  co-executor  in  equity  upon 
a  debt  due  the  testator."  A  party,  as  an  attorney,  who  assists  in 
procuring  a  fraudulent  transfer  to  another,  is  a  jprojper  party  to  an 
action  to  set  it  aside;*  but  the  complainant  must  demand  costs 
against  him  or  it  will  be  demurrable.*  If  one  of  the  parties  is 
connected  with  a  part  of  a  cause  of  action  which  cannot  be  pro- 
secuted in  several  suits,  he  cannot  demur  for  multifariousness,' 

The  reader  will  find  many  valuable  suggestions  as  to  parties  in 
cases  of  frauds,  in  Kerr  on  Frauds,  303  et  seq.,  1st  English  edition. 
(An  American  edition  of  this  valuable  work  has  recently  been 
published  by  Baker,  Yoorhies  &  Co.,  of  New  York.)  He  should 
also  consult  Barbour  and  Edwards  on  Parties,  Voorhies'  Code, 
Story's  Equity  Pleadings,  Story's  Equity  Jurisprudence,  and  the 
various  works  upon  pleadings  and  practice.  See,  also,  post,  inarg. 
p.  191.] 

But  can  a  plaintiff  under  the  Code,  after  joining  such  parties  as 
are  absolutely  necessary,  and  such  as  were  proper  by  the  well- 
recognized  rules  of  the  former  equity  system,  unite  with  them,  as 
defendants,  others  who  have  no  legal  right  in  the  controversy 
which  may  be  affected  b}^  the  judgment  ?  It  seems  manifest  that 
he  cannot,  if  the  objection  is  taken  at  the  proper  time  by  the 
demurrer  or  answer.  There  is  no  provision  in  the  Code  author- 
izing an  action  to  proceed  against  a  defendant,  in  respect  to  whom 
there  is  no  legal  or  equitable  cause  of  action,  or  who  is  not  neces- 
sary "  to  a  complete  determination  or  settlement  of  the  questions 
involved  therein."  Nor  was  there  any  thing  in  the  old  system 
which   authorized   it.      It  is  not  right  in  any  case  to  make  a 

1  EncjUs  V.  Furniss,  2   Abb.  333.  4  Hare,  438 ;  Kerr  on  Frauds  (Eng.  ed.) 

E.  D.  Smith,  587,  S.  C,  3  Abb.  8l:i ;  ana  326,  and  numerous  authorities  cited  ; 

see   an  article  upon  this  question,  5  but  see  Ely  v.  Lowenstein,  9  Abb.  N.  S. 

Am.  Law  Rev.  47  ;  and  see  ante,  marg.  38. 

pp.  129,  134.  ^  Crofts  v.  AUman,  12  Irish  Eq.  Rep. 

^  Blanchard  v.  Eh/,21  Wend.  342.  451,461 ;  Le  Texier  v.  The  Margraviiie, 

^  McGregor  v.  McGregor,  35  N.  Y.  etc.,  15  Ves.  164;  Beadles  v.  Burch,  10 

218.  Sim.  332  ;  Roddy  v.  Williams,  3  Jonea 

*  McCosker  v.   Brady,  1   Barb.   Ch.  &  Latouche,  1. 

320,  1  N.  Y.  214;   Huggins  v.   King,  ^  Crofts  v.  ^Z^maw,  12  Irish  Eq.  Rep. 

3  Barb.  616,  619  ;  8''ddoii  v.  Connd,  lO  464  ;  Attorney-Oeneral  v.  Poole,  4  Myl. 

Simons,   85 ;    Marshall  v.   Sladden,  7  &  Cr.  31. 


SEC.  III.]  OF   PARTIES  DEFENDANT.  113 

person  a  party  to  a  suit  unless  a  decree  can  be  obtained 
[*151:]  *against   him,  and  no    one   is  to  be  made  a  defendant 

merely  to  pay  costs.*  [The  author  should  have  excepted 
attorneys  and  others  who  assist  in  procuring  a  fraudulent  transfer, 
will,  judgment,  etc'  An  attorney  cannot  shield  himself  from 
costs  on  the  ground  that  he  was  his  client's  adviser,'  and  so  where 
he  does  not  explain  to  his  client  the  nature  of  the  instrument ;  * 
but  an  attorney  is  not  a  proper  party  merely  to  obtain  an  injunc- 
tion restraining  proceedings  on  behalf  of  his  client.^]  Bills  have 
been  dismissed  on  the  ground  of  making  persons  parties  to  the 
end  that  they  may  litigate  their  own  title.'  No  person  can  have 
a  right  to  call  another  into  court  to  make  him  contest  a  future 
legal  right.''  The  commissioners  of  the  Code  say  that  they  intend 
to  leave  the  plaintiff  at  liberty  to  "  bring  in  all  the  parties  whom 
he  wishes  to  affect;  and  that,  inasmuch  as  judgment  may  be 
given  for  or  against  any  one  or  more  of  the  plaintiffs  or  defend- 
ants, the  plaintiff  who  shall  bring  in  too  many  parties  will  merely 
encounter  the  hazard  of  paying  costs."  *  That  is,  we  presume,  if 
the  objection  of  too  many  parties  is  not  taken  by  demurrer  or 
answer,  it  is  held  to  be  waived,*  and  cannot  be  raised  on  the  trial ; 
but  in  such  case  the  court  is  to  determine  which  are  the  unneces- 
sary parties,  and  give  judgment  dismissing  the  complaint  as  to 
them  with  costs,  while  the  plaintiff  gets  his  relief  as  against  the 
other  defendants.  The  commissioners  certainly  could  not  mean 
that  the  suitor  himself  was  to  choose  whom  to  make  defendants, 
because  they  elsewhere  say  a  main  object  has  been  "  to  require 
the  real  party  in  interest  to  appear  in  cotirt  as  such."  "  Section 
120  is  also  repugnant  to  any  such  idea,  because  it  expressly  pro- 
vides a  class  of  cases  in  which  the  right  is  given  to  a  plaintiff  to 

include  several  defendants  in  the  same  action. 
[*155]     The  whole  theory  of  the  former  equity  system,  *indeed, 

as  it  was  well  settled  in  this  State  before  the  Code,  is 

1  Edw.  on  Parties,  14.  ^  Ely  v.  Lotcenstein,  9  Abb.  N.  S.  38. 

^  McCosker  y.  Brady,  1   Barb.  Ch.  ^  Edw.  on  Parties,  13. 

329, 1  N.  Y.  214;   Euggins  v.  King,  3  ■>  1  Eden,  520. 

Barb.  616 ;  Seddon  v.  Vonnell,  10  Simons,  *  Rep.  of  Com.  125. 

85  ;  Marshall  v.  Sladden,  7  Hare,  427.  »  Am.  Code,  ^  148. 

3  Bennet  v.  Fade,  2  Atk.  324  ;  Har-  i"  Rep.  of  Com.  123. 
vei/  V.  Mount,  8  Beav.  439 . 

*  Moore  v.  Prance,  9  Hare,  303,  and 
Bee  Kerr  on  Frauds,  336  (Eng.  ed.). 

15 


114  PAKTIES   TO   THE  ACTION.  [CH.  II. 

utterly  repugnant  to  any  such  doctrine  that  the  plaintiff  may 
"  bring  in  all  the  parties  he  wishes  to  affect,"  etc.,  etc.  It  was  a 
good  ground  of  demurrer  to  a  bill  that  a  defendant  who  had  no 
interest  in  the  controversy  had  been  joined  with  other  parties  as 
a  defendant  in  a  suit.'  No  person  was  properly  a  party  defend- 
ant against  whom  no  charge  could  be  supported,  and,  if  no  demur- 
rer was  interposed,  the  bill  was  usually  dismissed  at  the  hearing 
against  such  party  with  costs."  The  objection,  however,  was 
usually  taken  by  demurrer,  as  where  a  person  was  made  a  party 
defendant  on  the  ground  of  his  being  an  agent  merely  ; '  or,  if 
the  objection  did  not  appear  upon  the  face  of  the  complaint,  by 
answer.  It  was  ruled  by  the  chancellor,  however,  that  one 
defendant  could  not  demur  to  the  bill  because  other  parties  were 
improperly  made  defendants ;  the  objection  could  only  be  taken 
by  those  persons  themselves.*  The  same  rule  has  been  recognized 
under  the  Code  in  a  late  case,^  in  which  it  is  stated  that  the  joinder 
of  improper  parties  defendant  is  only  available  as  a  ground  of 

demurrer  by  the  defendants  so  improperly  joined. 
[*156]  It  has  been  held  since  the  Code'  that  a  *judgment  cred- 
itor, in  a  complaint  to  set  aside  an  assignment,  need  not 
make  all  the  creditors  parties,  though  it  would  be  otherwise  in 
an  action  to  establish  and  carry  out  the  assignment.  This  is 
entirely  similar  to  the  former  equity  rule.''  It  has  also  been 
decided  that  an  assignee  of  a  mortgage  may  be  made  a  defendant 
in  an  action  to  set  aside  the  mortgage  as  usurious.*  And  this  was 
precisely  the  rule  in  equity  before  the  Code.* 

In  order  to  join  parties  as  defendants,  under  section  118,  it  is 
necessary  to  allege  something  more  in  the  complaint  tha,n  that 
they  claim  an  interest  adverse  to  the  plaintiff.  The  nature  of  the 
claim  should  be  stated.  Thus,  in  Stryker  v.  Lynch^^"  a  demurrer 
was  allowed  to  a  complaint  in  partition  on  the  part  of  certain 

'  Mxdr  V.  Leake  and  Watts  Orplian  subject  further  discussed,  post, ch.  VII, 

House,  3  Barb.  Ch.  477.  §  2  (oS  Barb.  55  ;  48  id.  57]. 

^  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  "  Bank  of  British  North  America  v. 

158.  Suydam  and  others,  G  How.  Pr.  379. 

'  Oarr  v.  Brif/ht,  1  Barb.  Ch.  166.  '  Christie  v.  Ilerrick,  1  Barb.  Ch.  254. 

<  WJdtheck  V.' Edgar,  2  Barb.  Cli.  106  ;  »  Mies  v.  Randall,  2  C.  R.  31. 

see,  also.  Cherry  v.  Munro,  id.  618 ;  ^  Mumford  v.  Sprague  and  others, '.  1 

Butts  V.  Oenung,  5  Paige,  254.  Paige,  438. 

'  Brownson  and  idfe  v.  Gifford  and  "  11  Leg.  Obs.  116. 
others,  8  How.  Pr.  393,  and  see  this 


SEC.  III.]  OF   PAETIES   DEFEISTDAISTT.  115 

defendants  who,  it  was  alleged,  claimed  some  right  or  interest 
adverse  to  the  plaintiffs  in  the  land,  which  claim  it  was  farther 
alleged  was  inequitable  and  void. 

It  has  been  recommended  as  a  correct  practice,  in  the  case  of 
an  action  prosecuted  by  the  assignee  of  a  chose  in  action,  to 
make  the  assignor  defendant,'  after  a  demand  pursuant  to  section 
119  of  the  Code ;  but  it  is  difficult  to  see  how  an  assignor,  who 
has  absolutely  transferred  his  interest,  can,  under  ordinary  cir- 
cumstances, be  a  proper  party  to  an  action.'  It  is  clear  that  he 
could  not  join  as  plaintiff,  because  he  is  not  the  real  party  in 

interest ;  and,  therefore,  he  could  not  properly  be  made 
[*157]  defendant  by  virtue  '^of  section  119.     It  was,  indeed,  a 

general  rule  in  equity  that  the  assignor  of  a  chose  in  action 
was  a  proper  party  defendant,  in  a  suit  by  the  assignee  in  cases 
where  the  assignment  was  absolute  and  unconditional.  Where 
the  assignment  was  not  absolute  or  unconditional,  or  its  extent 
or  validity  was  denied,  he  was  not  only  a  proper  but  a  neces- 
sary party ;  and  the  more  ancient  rule,  it  would  seem,  required 
the  assignor  to  be  a  party  in  all  cases,  though  it  was  subsequently 
varied  so  as  to  make  him  a  proper,  and  not  a  necessary,  party, 
where  the  assignment  was  absolute.*  These  rules  were  generally 
recognized  and  followed  in  the  equity  system  of  our  own  State 
before  the  Code.  Thus,  the  assignee  was  not  permitted  to  sue  in 
equity  in  the  name  of  the  assignor,  but  the  action  must  be  pros- 
ecuted by  the  assignee,  the  real  party  in  interest.*  It  was  not 
necessary  in  an  action  for  relief,  and  not  for  discovery,  where  aU 
the  equitable  interest  had  been  assigned  over  to  make  the  assignor 
a  party,^  and,  indeed,  where  there  had  been  such  absolute  and 
unconditional  assignment,  it  seems  he  was  not  regarded  even  a.s  a 
proper  party.  "Where  the  assignee  has  the  whole  equitable 
interest  in  himself,"  says  the  chancellor,  in  Miller  v.  Bear,"  "  so 
that  nothing  remains  to  be  done  by  the  assignor,  who  has  part- 
ed with  his  entire  interest  in  the  property,  I  see  no  benefit 
which  can  result  to  any  person  by  making  him  a  party."  ^     But 

'  1    Leg.  Obs.  116.  Bogers    v.    Traders'    Ins.   Co.,  6    id. 

N  jte  to  §  111  Code,  Voorhies'  ed.  583. 

'  {Johnston  v.  Bennett,  5  Abb.  N.  S.  ^  Whitney  v.  McKinney,  7  Johns.  Ch. 

831.]  144;  Wardx.  Van  Bokkelen,^  Paige, 

^  Story's  Eq.  PL,  ^  153.  289. 

*  Meld  V.     Maghee,  5    Paige,  589 ;  ^  3  Paige,  466. 


116  PARTIES   TO   THE  ACTIOjST.  [CH.  II. 

[*158]  *if  the  assignment  was  not  absolute,  or  if  any  interest 
remained  in  the  assignor,  as  where  a  mortgage  was  assigned 
as  mere  security,  or  where  but  a  part  of  the  mortgage  debt  was 
assigned,  the  assignor  became  a  necessary  party  to  the  suit/ 

These  rules,  I  apprehend,  are  fully  applicable  to  the  Code,  with 
the  exceptions,  perhaps,  that,  under  the  present  system,  the  abso- 
lute and  unconditional  assignor  of  a  chose  in  action,  who  has 
parted  with  all  his  interest,  is  not  only  an  unnecessary  party,  but 
is  not  even  a  proper  party  to  the  action;  and,  if  joined  as  defend- 
ant, he  might  for  that  cause  demur  to  the  complaint.  The  reason 
assigned  in  the  books  on  equity  pleading  for  allowing  him  to  be 
made  a  party  was,  that  his  ^Hegal  right  might  be  bound  by  a 
decree  of  the  court ; "  for  the  distinction  was  taken,  that  though 
the  assignee  was  the  equitoMe  and  heneficial  owner,  yet  the  legal 
right  remained  in  the  assignor ; "  or,  as  it  is  better  expressed  by 
the  chancellor  in  Ward  v.  Van  Bokkelen  y^  "  The  reason  why 
it  was  formerly  considered  necessary  to  make  the  assignor  of  a 
chose  in  action  a  party  to  a  bill  in  equity  brought  by  the  assignee, 
I  apprehend,  must  have  been  that  courts  of  law  did  not  sanction 
and  protect  such  assignments,  considering  them  a  species  of  main- 
tenance. And  the  assignor  having  the  legal  title  or  interest  in 
the  thing  assigned,  he  might  sustain  an  action  at  law  thereon,  not- 
withstanding a  decree  in  equity  to  which  he  was  not  a 
[*159]  party."  That  *is  to  say,  he  was  allowed  to  be  a  party 
only  to  bar  his  right  of  action  at  law.  If  the  reason  had 
long  ceased  before  the  Code,  it  has  doubly  ceased  since.  There 
is  now  no  such  thing  as  a  legal^  as  contradistinguished  from  an 
equitable  title  or  interest.  The  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest.  And  if  an  assignor,  having  no 
interest,  not  even  what  was  formerly  a  legal  right.,  be  made  a 
party,  I  see  no  reason  why  he  cannot  take  the  objection  if  he  sees 
fit  to  do  so. 

It  is  scarcely  necessary  to  notice  here  the  provision  of  section 
119,  which  has  been  spoken  of,  as  relating  to  parties  plaintiff,  in 
the  last  preceding  section  of  this  work.     So  far  as  It  concerns  de- 

'  Christie  V.  Hernck,  1  Barb.  Ch.  255.        »  2  Paige,  295. 
»  Story's    Eq.  PI.,  §  153 ;    Edw,  on 
Parties. 


SEC.  III.]  OF   PARTIES   DEFENDANT.  117 

fendants,  it  requires  those  who  are  "  united  in  interest ''  to  join  as 
parties ;  but  if  the  consent  of  any  one  who  should  have  been 
joined  as  plaintiff  cannot  be  obtained,  he  may  be  made  a  defend- 
ant, the  reason  thereof  being  stated  in  the  complaint.     This  is 
but  a  legislative  enactment  of  the  former  equity  rule.     The  prac- 
tice under  it  was  intimated  in  Tooker  v.  OaUey"  to  be,  that  the 
proper  course,  in  the  first  place,  was  to  institute  the  suit  in  the 
names  of  all  the  parties,  as,  for  example,  in  the  case  of  executors 
and  administrators,  to  join  them  all  as  complainants,   and,  if 
either  of  them  declined  to  have  the  suit  prosecuted,  then  to  obtain 
leave  to  have  him  made  defendant,  stating  the  reason  there- 
[*160]  of  in  the  amended  bill.     So,  *  too,  in  regard  to  the  other 
clause  of  the  section,  allowing  one  or  more  to  sue  or 
defend  for  the  benefit  of  the  whole,  where  the  parties  are  very 
numerous,  and  it  may  be  impracticable  to  bring  them  all  before 
the  court,  it  is  an  enactment  of  the  former  equity  rule,  as  has 
been  remarked  and  more  fully  explained  in  the  preceding  section, 
in  regard  to  parties  plaintiff.     It  may  be  added  that  in  respect  to 
this  whole  section  it  has  been  thought,  on  high  authority,  to  be 
applicable  only  to  actions  which  formerly  were  of  an  equitable 
nature.     "I  incline  very  strongly  to  the  opinion,"  says  Justice 
DuEK  in  Eabicht  v.  Pemlerton^  "  that  section  119  of  the  Code 
ought  to  be  construed  as  merely  re-enacting  the  rules  that  other- 
wise might  have  been  held  to  be  abolished,  which,  previously  to 
the  adoption  of  the  Code,  prevailed  in  courts  of  equity,  and,  con- 
sequently, that  it  is  to  suits  equitable  in  their  nature  that  the 
provisions  in  this  section  should  still  be  exclusively  applied." 

In  actions  formerly  classed  as  legal.  In  this  class  of  actions  it 
cannot,  as  a  general  thing,  be  a  difiicult  matter  to  determine  who 
are  proper  parties  defendant.  The  old  rules  of  pleading  are,  in 
the  main,  applicable.  There  are,  however,  some  exceptions. 
Thus,  one  partner,  or  tenant  in  common,  could  not  sue  his  co- 
partner or  co-tenant  at  law;  nor  could  a  cestui  que  trust  sue  his 
trustee.     The  remedy  was  in  equity.'     Now,  by  the  Code,  the 

>  10  Paige,  288.  See  ante,  marg.  p.  "  1  Chitty's  PI.  84, 38 ;  ante,  marg.p. 
129, 134,  153.  153. 

3  4  Sandf .  S.  C.  657 ;  ante,  ma/rg.  p. 
153. 


118  PARTIES  TO  THE  ACTION.  [CH.  II, 

same  form  of  action  is  adopted  in  all  cases,  and  a  copartner  or 
co-tenant  may  be  made  a  defendant,  as  a  trustee  may,  to  answer 

his  cestui  que  trust. 
[*161]       ^In  an  action  on  contract,  where  there  are  several  parties, 

if  the  contract  be  joint,  they  must  all  be  defendants,^  even 
if  one  of  them  have  a  certificate  of  bankruptcy,*  [or  be  an  infant,'  or 
the  claim  as  to  one  be  barred  by  the  statute  of  limitations/]  If  one 
be  dead  the  survivors  are  the  proper  defendants.^  In  the  well- 
considered  case  of  Bridge  v.  Payson^  in  the  New  Tork  superior 
court,  it  was  held,  after  consultation  by  all  the  judges  of  that  court, 
that  the  Code  had  made  no  change  in  respect  to  the  rules  govern- 
ing parties  defendant  in  an  action  on  contract.  Now,  as  before 
the  Code,  partners,  as  well  as  other  joint  debtors,  must  all  be  sued, 
and  the  failure  to  join  one  partner,  or  joint  debtor,  with  his  co- 
partner or  joint  debtor,  as  defendant,  was  a  valid  defense,  and 
might  be  set  up  in  the  answer.  In  that  case  section  122  had 
been  relied  upon  as  having  established  a  difl'erent  rule,  by  allow- 
ing the  court  to  determine  any  controversy  between  the  parties 
before  it,  when  it  can  be  done  without  prejudice  to  the  rights  of 
others,  etc.  But  the  court  refused  to  adopt  this  construction,  or 
to  relax,  in  the  slightest  degree,  the  well-settled  rules  of  the  com- 
mon law  in  relation  to  parties  defendant  to  actions  on  contract. 
[The  superior  court  holds  that  a  dormant  partner  must  be  joined 
as  a  party  plaintiff;'  but  we  do  not  think  the  case  good  law.  If 
credit  be  given  to  A  without  notice  that  B  is  also  interested  in 
the  purchase,  B  is  not  a  necessary  party.*]  It  may  be  added,  in 
reference  to  the  section  last  cited,  that  it  has  been  held,*  not  to 
authorize  a  person,  not  a  party,  though  having  an  interest,  to  be 
made  a  party,  on  his  own  application,  to  an  action  on  contract, 
express  or  implied,  for  the  recovery  of  money. 

But  section  118,  says  the  commissioners  of  the  Code, 
[*162]  will  enable  a  plaintiff  to  exhaust,  in  one  suit,  *his  remedy, 

against  a  surviving  partner  and  the  representative  of  a 

'  1  Chitty's  PI.  41.  "  15  Wend.  318. 

»  4  Taunt.  178.  *  5  Sand.  S.  C.  210. 

*  Slocum  V.  Hooker,   12  Barb.  563 ;        '  Sccor  v.  Keller,  4  Duer,  416. 
Shepherd  v.  Greaves,  1  N.  T.  Leg.  Obs.        *  Broicn  v.  Birdsall,  29  Barb.  549 
281.  '*  Mckl  V.    Toung,    7    How.  Pr.  79 

*  Hyde  v.  Van  ValkeiJburgh,  1  Daly,  [but  see  Craig  v.  Ward,  2  Trans.  App. 
416.     See  Moak's  note  to  Clarke's  Ch.  281]. 

IZQ.marg.p. 


SEC.  III.  J  OF  PAETIES   DEFENDANT.  119 

deceased  partner.  And  if  this  doctrine  be  true,  so  also,  in  case 
of  the  death  of  any  joint  contractor  whenever  his  estate  would  be 
Kable  in  equity.  If  this  be  so,  it  is  at  least  one  case  in  which  the 
equity  rule  as  to  parties  is  applicable  to  an  action  of  common-law 
origin  under  the  Code.  It  may  be  of  use,  therefore,  briefly  to 
notice,  in  this  place,  how  far  this  rule  has  been  recognized  under 
the  new  system.' 

It  was  very  fully  concurred  in  by  Mr.  Justice  Edmonds,  in  Hicart 
"J.  Tovjnsend  and  others^  wherein  it  was  said  that,  il'  the  action  was 
brought  to  reach  the  partnership  property,  the  surviving  partner 
is  a  necessary  party,  and  the  representatives  of  the  deceased  part- 
ner are  jproper  parties,  because  they  have  an  interest  in  the  con- 
troversy. But  in  such  case  the  prayer  of  the  complaint  should 
clearly  define  the  particular  kind  of  relief  which  the  plaintiff 
seeks  against  each  party;  if  not,  it  may  be  corrected  on  motion. 

This  was  carrying  the  doctrine  to  the  full  extent  of  the  equity 
rule.  In  Butts  and  Ha/ven  v.  Genung  and  others,^  an  equity 
case  under  the  old  practice,  it  is  held,  that  where  a  bill  is  filed 
against  the  representatives  of  a  deceased  partner  to  obtain  satis- 
faction of  a  copartnership  debt  out  of  the  estate  of  the  decedent, 
the  surviving  partner,  who  was  insolvent,  might  be  joined  as  defend- 
ant ;  but  it  was  made  the  subject  of  a  quere  whether  the  surviv- 
ing partner  was  a  necessary  party  in  such  case.  The  same 
[*163]  doctrine  *was  recognized  in  the  case  of  Lawrence  v.  Trus- 
tees of  Leake  and  Watts  Orphan  House  y*  but  it  was  also 
held,  that  the  estate  of  the  deceased  copartner  or  joint  debtor 
could  not  be  reached  by  suit  in  chancery  without  averring  and 
proving  that  the  surviving  debtors  were  insolvent  —  there  being 
no  concurrent  remedy  in  equity  and  at  law  for  the  7'ecovery  of 
the  debt.  That  is  to  say,  the  debt  being  joint,  the  creditor  was 
bound  to  proceed  to  judgment  at  law  against  the  surviving  part- 
ner alone,  and  could  not  proceed  in  equity  against  the  estate  of  the 

'  [The    rights    of    actions    by    and  Blatcli.  524 ;  United  States  v.  Artcher, 

against  survivors  and  the  representa-  1  Wallace  Jr.    173,  disapproving  Uni' 

tives  of  deceased  partners  and  joint  ted  States  v.  Cushman,  2  Sumn.  426  ; 

and  several  debtors  is  considered  by  and  post,  marg.  p.  193.] 

the  editor  of  the  present  edition,  in  a  ^6  How.  Pr.  460. 

note  to  Clarke's  Ch.,  marg. p.  17i.    In  ^5  Paige,  254. 

addition  to  the  cases  there  cited  the  *  11  Paige,  80.     Aflarmed  by  court  of 

reader  should  consulfifc  Vean  v.  Scott,  errors,  2  Denio,  577. 
46  Barb.  379;    Melden  v.  Lahens,  6 


120  PAETIES   TO   THE   ACTIOI^.  [CH.  II. 

deceased  joint  contractor  without  showing  some  suflScient  reason 
for  not  proceeding  at  law  against  the  surviving  partner. 

In  the  fourth  district,'  Mr.  Justice  Hand  expresses  his  dis- 
approbation of  the  principle  of  Ricart  v.  Townsend.  The 
plaintiff  had  there  sought  to  unite,  under  the  Code,  the  sur- 
vivor, with  the  representatives  of  a  deceased  joint  and  several 
maker  of  a  promissory  note,  but  without  averring  the  insolvency 
of  the  survivor.  In  the  opinion  of  the  court  in  this  case,  it  is 
said  :  "  The  relief  demanded  in  the  complaint  is  simply  judgment 
and  payment,  and  no  circumstances  entitling  plaintiff  or  any  of 
the  parties  to  equitable  interference  are  stated  or  pretended  in  the 
pleadings  on  either  side.  In  Ricart  v.  Townsend  (6  How.  Pr. 
460),  Mr.  Justice  Edmonds  held,  that,  under  the  Code,  a  surviving 
partner  and  the  representatives  of  a  deceased  partner 
[*164]  could  be  joined  in  an  action  to  recover  damages  *on  a 
contract  by  the  firm  ;  and  in  the  report  nothing  is  said  of 
the  insolvency  of  the  survivor.  With  all  respect,  so  long  as  the 
law  in  respect  to  the  rights,  duties  and  liabilities  of  the  surviving 
partner  is  unchanged,  that  construction  appears  somewhat  doubt- 
ful, especially  when  the  survivor  is  solvent.  The  reason  and  pro- 
priety of  the  former  rule  exist  in  full  force.  But  however  it  may 
be  as  to  partners,  the  representatives  of  D.  Ballon  could  have  no 
interest  in  the  controversy  adverse  to  the  plaintiff  in  a  suit  against 
R.  Ballon,  nor  could  they  be  necessary  parties  to  a  complete  de- 
termination of  the  question  involved  therein,  which  could  have 
been  had  without  prejudice  to  their  right.  And  these  defend- 
ants could  not  interpose  any  equities  between  themselves,  or 
counterclaims  against  each  other,  to  embarrass  the  plaintiff'." 

The  reasoning  in  this  case  would  seem  to  admit  the  existence, 
under  the  Code,  of  the  equitable  principle  that  the  survivor  of 
two  or  more  partners,  if  his  insolvency  were  averred  in  the  com- 
plaint, might  be  joined  with  the  representatives  of  a  deceased 
partner,  but  to  deny  its  application  in  all  other  cases,  holding  to 
the  strict  common-law  rule  that  the  survivor  alone  must  be  sued, 
or,  if  the  contract  were  several  as  well  as  joint,  then  that  the 
action  might  be  either  against  the  survivor  or  the  representa- 
tivef  rr  the  deceased  contractor.  In  the  well-considered  case  of 
'  Morehouse,  Ex'r,  v.  Ballou  and  others,  Ez's,  16  Barb.  289. 


SEC.  III.]  OF  PAETIES   DEFENDANT.  121 

Yorhs  V.  Peck^  at  a  general  term  in  the  seventh  district  the 
same  subject  was  considered,  and  the  surviving  maker  of  a  joint 
[*165]  *and  several  promissory,  note,  was  held  to  be  a  proper 

party  defendant,  with  the  representatives  of  a  deceased 
maker."  From  the  report  of  that  case  it  seems  that  the  insolvency 
of  the  survivor  was  proved  on  the  trial,  and  the  action  was  thought 
to  be  analogous  to  a  suit  in  equity.  But  it  was  not  expressly 
decided  whether  in  a  suit  on  such  a  contract,  without  averment  or 
proof  of  the  insolvency  of  the  survivor,  he  might  have  been  joined 
as  a  defendant  with  the  representatives  of  the  deceased  contractor. 
The  court  did  not  fail,  however,  to  notice  the  fact  (which  is  cer- 
tainly well  worthy  of  consideration),  that  the  reason  of  the  equity 
rule  which  prohibited  the  joining  of  a  surviving  joint  contractor 
with  the  representatives  of  the  deceased  contractor  had  ceased 
'under  the  Code.  Under  the  former  system  it  rested  upon  the 
principle  that  resort  should  not  be  had  to  a  court  of  equity  where 
there  was  an  adequate  remedy  at  law ;  and,  under  the  present 
system,  the  distinction  between  actions  at  law  and  equity  being 
abolished,  and  the  court  being  allowed  to  render  judgment,  charg- 
ing defendants  in  difi'erent  rights,  it  ought  not  to  require  the 
plaintiff  to  show  an  excuse  for  not  pursuing  a  legale  before 
attempting  to  avail  himself  of  an  equitable,  remedy.  The  weight 
of  authority,  however,  in  cases  of  partnership,  at  least,  seems  to  be 
at  present  the  other  way,  and  to  indicate  the  correct  practice  to 
be,  as  in  the  cases  of  Higgins  v.  Freeman  and  Rock- 
[*166]  well^   and    De  Agreda   v.   Mantel*  that   a   surviving* 

partner  cannot  be  joined  with  the  personal  representa- 
tives of  a  deceased  partner,  unless,  perhaps,  in  a  case  where 
the  insolvency   of   the   survivor,  etc.,  is   alleged  and   proved.' 

>  14  Barb.  S.  C.  644.  3  2  Duer,  650. 

2  And  see  Be  Agreda  v.  Mantel  (1        *  i  ^^b  p^  130. 
Abb.  Pr.  130),  in  which  it  is  held  that 
they  are  necessary  parties. 

5  The  following  decision  by  Justice  Roosevelt,  at  a  special  term  in  the  first  district 
April  30, 1853,  is  from  the  New  York  Times.  It  was  affirmed  by  the  general  term,  on 
appeal  (1  Abbott's  Pr.  43),  and  agrees  in  the  main  with  the  opinion  of  Justice  Hand  in 
Mooreliouse,  ex'r,  v.  Ballou,  supra. 

Wm.  Voorhis  and  others  v.  Wm.  L.  Baxter  and  others.  The  executors  of  a  deceased 
partner  cannot  be  sued  by  the  creditors  of  the  firm  until  the  ordinary  remedies  have 
been  exhausted  against  the  surviving  partner,  unless  it  be  averred  and  admitted,  or 
proved,  that  the  survivor  is  insolvent.  The  law  gives  the  assets  of  the  firm  for  the 
purposes  of  liquidation  to  the  survivor  alone,  and  for  that  reason  justly  devolves  upon 

16 


122  PAETIES  TO   THE  ACTION.  [CH.  II. 

In  the  case  of  De  Agreda  v.  Mantel^  it  is  held,  that,  though  in  the 
case  oi^  joint  contract,  the  survivor  only  can  be  sued,  yet  if  the 
contract  be  joint  and  several,  the  personal  representatives  of  the 
deceased  are  necessary  parties. 

Where  the  contract  is  so  framed  that  it  does  not  confer  upon 
the  plaintiff  a  remedy  against  the  contractors  jointly,  but  each  is 
only  separately  responsible  for  his  own  act,  it  is  essential 
[*167]  to  sue  them  separately.'  *The  Code,  however,  as  will  be 
presently  noticed,  conformable  to  the  existing  statute  author- 
izing suits  against  parties  to  bills  and  notes,  permits  persons  sever- 
ally liable  on  written  obligations  or  instruments,  including  bills  of 
exchange  and  promissory  notes,  to  be  joined  as  parties  defendant.* 

Where  the  contract  is  several  as  well  as  joint,  the  plaintiff  is  at 
liberty  to  proceed  against  the  parties  jointly,  or  each  separately, 
though  their  interest  be  joint.  [Before  the  Code,  when  the  con- 
tract was  joint  and  several,  the  plaintiff  was  bound  to  prosecute 
each  party  separately  or  all  together.'  Since  the  Code  he  may 
proceed  against  one  or  more  and  less  than  the  whole  number.*] 
In  an  action  on  a  bond  executed  by  a  married  woman  and  her 

'  Chitty's  PI.  43.  *  Quigley  v.  Walter,  2  Sweeny,  175  ; 

*  Code,  §  120.  De  Bidder  v.  SchermerJiorn,  10  Barb. 

^  Quigley  v.  Walter,  3  Sweeny,  175 ;  640,  641.      Contra  but   not  good  law, 

Minor  v.  Meclianics,  etc.,  1  Pet.  46,  73,  Bensan  v.  Paine,  17  How.  407. 
1  Pars,  on  Cont.  (5th.  ed.)  13. 

him  alone,  in  the  first  instance,  the  duty  of  paying  the  partnership  debts.  Innovations 
in  this  previously  long  and  well-established  rule  have  recently  been  made  by  the  Eng- 
lish courts,  in  the  case  of  Davayne  v.  NoNe,  2  Russ.  &  Myl.  495,  and  Wilkinson  v.  Hender- 
son, 1  Myl.  &  Keen,  583.  But  our  courts,  not  convinced  by  the  reasoning  for  it,  have 
not  followed  the  change.  On  the  contrary,  in  the  case  of  Lawrence  v.  Tlie  Trustees  of 
the  Leake  and  Watts  Orphan  House,  3  Denio,  577,  the  court  of  errors,  after  full  argu- 
ment, and  with  the  English  cases  before  them,  determined,  by  a  unanimous  vote,  that 
there  was  no  good  reason,  either  in  principle  or  convenience,  for  departing  fi-om  the 
ancient  rule.  Nor  is  there,  in  the  more  recent  Code  of  Procedure,  any  provision 
expressly  repealing,  or  palpably  inconsistent  with,  the  rule  thus  solemnly  ratified.  A 
rule  of  proceeding  affecting  substantial  rights,  when  expressly  enacted  by  statute,  or 
deliberately  and  directly,  after  full  argument,  settled  and  declared  by  judicial  deter- 
mination in  the  highest  court  known  to  the  laws,  ought  not  to  be  lightly  repealed,  of 
presumed  to  have  been  intended  to  have  been  repealed,  by  subsequent  legislation, 
unless  the  subsequent  enactment  bo  so  clear  as  to  leave  no  room  for  doubt,  or  sc 
repugnant  as  to  admit  of  no  possibility  of  the  two  provisions  working  together.  I  can 
discover  nothing  of  the  kind  in  the  new  Code.  To  constitute  a  cause  of  action,  there- 
fore, against  the  executors  of  a  deceased  partner,  where  there  is  a  surviving  member 
of  the  firm,  it  is  still  indispensable,  as  heretofore,  that  the  plaintiffs  should  aver  insol- 
vency in  the  survivor.  No  such  allegation  being  contained  in  the  present  complaint, 
the  executors  have  a  right  to  demur  to  it  for  insuflEiciency,  and  as  to  them  it  must  be 
dismissed,  with  costs. 


SEC.  III.]  OF   PAETIES   DEFENDANT.  123 

husband,  she  should  not  be  joined ;  but  she  would  be  a  proper 
party  in  an  action  to  foreclose  a  mortgage  given  to  secure  the  pay- 
ment of  such  bond,  the  legal  interest  in  the  premises  being  vested 
in  her.^  In  the  first  section  of  this  chapter  I  have  considered  at 
some  length  the  subject  of  the  appearance  of  married  women,  and 
when  and  in  what  cases  they  should  sue  or^  be  sued  alone,  or 

should  join  or  be  joined  with  their  husbands,  and  it  is, 
[*168]  therefore,  ^unnecessary  to  pursue  the  subject  further  in 

this  place.  It  may  be  added  that  a  recent  statute  author- 
izes an  action  for  a  debt  of  the  wife  contracted  before  marriage  to 
proceed  jointly  against  husband  and  wife,  but  execution  shall  issue 
against,  and  the  judgment  bind,  the  separate  estate  of  the  wife 
only.' 

One  of  the  general  rules  as  to  parties  defendant  in  actions  on 
contract,  which  is  equally  applicable  now  as  before  the  Code,  may 
be  stated  to  be,  that  the  action  must  be  brought  against  the  per- 
son who  made  the  contract  either  by  himself  or  his  agent.^  A 
mere  agent  is  not  liable  on  contract,  where  he  acts  as  agent,  and 
discloses  his  principal  at  the  time.  But  if  an  agent  act  as  prin- 
cipal, and  does  not  disclose  the  name  of  his  principal  or  declare  that 
he  acts  as  agent  at  the  time  of  making  a  verbal  contract,  and 
credit  be  given  expressly  to  him,  he  will  be  personally  responsi- 
ble." And  so  too  where  an  agent  does  not  pursue  his  authority, 
or  so  far  exceeds  it  as  to  discharge  his  principal,  or  where  he  acts 
under  an  authority  which  he  knows  the  principal  had  no  right  to 
give,  he  is  personally  responsible."  [The  liability  of  the  assumed 
agent  rests  upon  the  ground  that  he  warrants  his  authority,  and 
not  that  the  contract  is  to  be  deemed  his  own ;  *  but  a  complaint 
stating  all  the  facts  will  support  a  recovery  on  the  ground  of  war- 
ranty, though  that  be  not  specifically  stated  as  the  basis  of  the 
claim.  ^  An  agent  acting  in  good  faith,  who  exceeds  his  authority, 
is  not  responsible  to  the  adverse  party  if  the  facts  are  known  to 
him."*]     Where  goods  are  supplied  to,  or  work  done  for,  a  joint- 

'  Conde  v.  STiepard  and  wife,  4  How.        ^  See  cases  cited  in  Saundf.  PI.  and 

75 ;  Conde  v.  Nelson  et  al.,  2  C.  R.  58.  Ev.  175, 176. 

"  Laws    of    1853,    cli.    576     [  ante,        «  White  v.  Madison,  26  N.  T.  117, 

marg.  p.  93].  Law  Rep.  3,  Priv.  Coun.  Cas  24  ;  As- 

3  8  East,  10, 13  id.  238, 16  id.  169.  pinwall  v.  Torrance,  1  Lans.  381. 

M  T.  R.  181, 1  id,  359,  1  Saundf.  PI.        '  White  v.  Madison,  26  N.  T.   117 ; 

and  Ev.  174.  Union  Bank  v.  Bush,  36  id.  636. 

*  Aspinwall  v.  Torrance,  1  Laus.  381. 


124  PAETIES   TO   THE  ACTION.  [CH,  II. 

stock  trading  or  other  company  associated  for  profit,  the  action 
may  be  brought  against  all  the  directors,  though  some  of  them 
only  gave  the  order.  And  where  such  company  has  commenced 
its  operations,  every  shareholder  who  has  become  a  com- 
[*169j  plete  partner  *is  liable  ;  and  every  person  who,  by  infer- 
ence or  otherwise,  holds  himself  out  as  a  partner,  is  liable, 
though  he  parted  with  his  shares  before  the  company  was  com- 
pletely formed.'  [But  where  several  parties  became  stockhold- 
ers by  subscribing  stock  for  the  purpose  of  establishing  a  semi- 
nary, and  each  subscribes  the  amount  which  he  proposes  to  pay 
for  that  purpose  and  pays  the  same,  the  trustees  chosen  cannot 
incur  debts  for  the  purpose  of  the  object  in  view,  and  on  payment 
thereof  enforce  contribution  on  account  of  discharging  such 
debts.^  Nor  would  such  a  creditor  have  a  right  of  action  against 
the  subscribers  who  had  not  authorized  the  contracting  of  the 
liability.']  But  by  a  recent  statute  of  this  State,*  any  joint-stock 
company  or  association,  consisting  of  seven  or  more  shareholders 
or  associates,  may  sue  and  be  sued  in  the  name  of  the  president 
or  treasurer  for  the  time  being  of  such  company. 

In  general  an  action  for  the  breach  of  a  mere  formal  contract 
cannot  be  brought  against  an  assignee,  but  must  be  brought  against 
the  original  party.  There  is  sometimes,  however,  a  change  of 
credit,  by  agreement,  between  the  parties,  as  in  the  instances  cited 
of  a  new  firm  adopting  the  debt  of  an  old  firm,  and  the  like.' 

In  regard  to  parties  defendant  in  actions  on  bills  of  exchange, 
and,  indeed,  all  other  written  instruments,  the  Code  makes  the 
following  general  provision : 

"  Persons  severally  liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  exchange  and  promissory 
notes,  may,  all  or  any  of  them,  be  included  in  the  same  action,  at 
the  option  of  the  plaintiflT." ' 

It  may  be  remarked  that  this  section  extends  to  written  in- 
struments or  obligations.  No  distinction  is  made  between  such 
instruments  as  are  sealed  and  such  as  are  unsealed.     Persons  sev- 

'  1  Saund.  PI.  and  Ev.  176, 177.  ■»  Laws  of  1849,  cli.  258. 

«  Sliihley  v.  Angle,  37  N.  Y.  620.  ^  1  Cliitty's  PI.  54,  1  Saund.  PI.  and 

»  ShiUey  v.  A7igle,  37  N.  Y.  626 ;  In  Ev.  178. 

re  National,  etc.,  L.  R.,  5  Chan.  App.  *  Code,  §  120. 
809. 


SEC.  III.]  OF   PARTIES   DEFENDANT.  125 

erally  liable  on  such  instruments  may,  all  or  any  of 
pi70]  them,  be  included  *  in  the  same  action.  By  statute,  the 
makei  and  indorser,  drawer  and  acceptor,  of  a  promissory 
note  or  bill,  might  be  joined,'  and  this  provision  is  retained  by 
the  section  of  the  Code  referred  to.  [But  the  statute  does  not 
apply  to  one  who  indorses  a  note  not  negotiable  after  it  is  given* 
although  it  seems  if  he  indorsed  it  before  or  at  the  time  of  deliv- 
ery he  may  be  treated  as  a  maker  or  guarantor,  according  to  the 
efi'ect  of  the  transaction.']  Section  120  of  the  Code,  however, 
goes  farther,  and  makes  one  or  two  changes  which  it  is  important 
to  notice.  A  joint  action  at  common  law  could  not  be  maintained 
on  a  covenant  entered  into  by  two  or  more  severally*  So,  if  the 
contract  was  joint  and  several,  the  plaintiff  must  sue  all  jointly 
or  each  separately,  and  could  not  sue  two  of  three  or  more  of  the 
parties.^  These  principles,  so  far  as  they  affect  every  description 
of  written  instrument  or  obligation,  are  now  changed  by  section 
120  of  the  Code,  the  plaintiff",  at  his  option,  being  at  liberty 
to  sue  any  one  or  more,  or  all  the  parties,  so  liable.  But  it 
has  been  held,*  that  the  section  does  not  authorize  the  joinder 
of  a  person  liable  as  a  mere  guarantor,  with  the  principal,  in  a 
covenant  under  seal,  though  the  guaranty  was  executed  on  the 
same  day  and  on  the  same  piece  of  paper.  The  covenant  of  the 
principal  and  the  covenant  of  the  guarantor,  it  was  said,  are  not 
the  "same  obligation  or  rnstruraeut"  within  the  meaning  of  the 
Code,  and,  on  a  demurrer  to  such  a  complaint,  judgment  was  ren- 
dered for  the  defendant. 

[It  is  now  well  settled  that  a  joint  action  against  a  principal 
debtor  and  his  guarantor,  by  a  separate  and  independent  instru- 
ment, will  not  lie ;'  otherwise  where  the  guaranty  is  made  a  part 
of  the  principal  contract,  and  the  principal  debtor  and  guarantor 

J  Laws  1832, p.  489,§1;  1835,  p.  248.  Barb.   S.    C.  638,   Special   Term,    per 

[See  Clarke's  Ch.,  Mouk's  note,  marg.  Willabd,  J. 

p.  171  ;  ante,  marg.  p.  103,  note,  and        '  Allen  v.   Fosgate,    11    How.   218  ; 

language  of  Selden,  J.,  27  N.  Y.  637.]  Bretoster  v.  Silence,  8  N.  Y.  207 ;   Weed 

2  Wtdte  V.    Low,  7  Barb.   204;    see  v.  Cter/c,  4  Sandf.  31 ;  Tibbits  v.  Percy, 

note,  40  N.  Y.  495.  24  Barb.  39  ;  Phalen  v.  Dingee,  4  E.  D. 

2  Cromwell  v.  Hetoitt,  40  N.  1.  491,  Smith,  379;  Spencer  v.   Wheelock,  11 

and  see  Mr.  Hand's  note,  p.  492 ;  Bich-  N.  Y.  Leg.  Obs.  329,  Gen.  T.,  7th  Dist , 

a/rdsv.  Warring,!  Keyes,57Q.  1853;   1  Pars,   on  Cont.  (5tli  ed.)  11, 

*  1  East,  226,  227.  overruling,  in  effect,  Bnos  v.  Thomas  4 
«  3  T.  R.  782,  1  Saund.  291.  How.  48. 

•  Be   Bidder   v.    Schermerhorn,   10 


126  PARTIES   TO   THE  ACTIOlSr.  [CH.  II. 

execute  the  same  instrument.*  If  tlie  grounds  of  tlie  objection  to 
the  maintenance  of  a  joint  action  appear  upon  the  face  of  the 
complaint,  the  remedy  is  by  demurrer  ;^  on  the  grounds  that  sev- 
eral causes  of  action  are  improperly  united  in  the  complaint.' 
But,  if  the  plaintiff  declare  in  assumpsit  and  offer  the  contracts 
in  evidence  to  sustain  the  allegations  in  the  complaint,  the  defend- 
ants may  object  on  the  ground  of  the  misjoinder,  although  no 
demurrer  was  served.  The  defect  does  not  appear  upon  the  face 
of  the  complaint.*  Independent  of  these  authorities,  we  should 
say  that,  if  the  fact  did  not  appear  on  the  face  of  the  complaint, 
the  objection  should  be  taken  by  answer  ;^  or  it  would  be  waived/ 
If  the  defect  appears  upon  the  face  of  the  complaint,  the  defend- 
ants may  demur,  jointly '  or  separately.*  It  was  held,  under  the 
former  practice,  that  there  could  not,  in  such  case,  be  a  severance 
of  the  action  and  a  recovery  against  one ;"  but,  under  the  present, 
the  court  could  undoubtedly  allow  the  plaintiff  to  elect  as  to 
which  defendant  he  would  proceed  against;'"  although,  as  the 
action  would  not  have  been  jproperly  commenced  against  both,  it 
could  not  be  allowed  to  proceed  as  separate  actions  against  each." 
The  question  not  arising  upon  demurrer^  section  172  would  not 
authorize  such  a  disposition  of  the  cause.  It  is  doubtful  whether, 
even  upon  demurrer,  such  a  severance  could  be  allowed.  It  would 
not  be  a  case  where  several  causes  of  action  were  improperly 
united  against  one  party,  but  where  parties  were  improperly  joined 
upon  several  and  distinct  causes.  The  court  could,  however,  allow 
the  plaintiff,  upon  payment  of  costs  to  both  parties,  to  elect  to 
discontinue  as  to  one  and  to  serve  an  amended  summons  and  com- 
plaint upon  the  other."] 

This  differs  from  the  case  of  Enos  v.  TTiomas^^  in  which  it 
was   held,    that    the    principal   and   surety   might  be    properly 

»  Carman  v.  Floss,  23  N.  T.  386,  «  Malone  v.  Stilwell,  15  Abb.  425  ;  Val- 

1  Pars,  on  Cont.  (5th  ed.)  11.  entinev.  Lloyd,  4  Abb.  N.  S.  371 ;  Ooelet 

2  Code,  §  147.  V.  Gori,  31  Barb.  331. 

2  Code,  §  144,  subd.  5.  ^  Miller  v.  Gaston,  2  Hill,  188. 

4  Phalen  v.  Dingee,  4  E.  D.  Smitb,  lo  Code,  §  274 ;  Billaye  v.  Wilson,  43 

379  ;  Miller  v.  Gaston,  2  Hill,  188  ;  DiU  Barb.  261. 

laye  v.  Wilson,  43  Barb.  261 ;  Watts  v.  "  Union  Bank  v.  Mott,  27  N.  T.  636. 

Kinney,  6  Hill,  82.  '«  jyniaye  v.  Wilson,  43  Barb.  261. 

^  Code,  ^  144,  subd.  5,  §§  118. 147.  '»  4  How.  Pr.  48. 

«  Code,  §  148. 

■"  Hess  V.  Niagara  Falls,  etc.,  29  Barb. 
891. 


SEC.  HI.]  OF   PARTIES  DEFENDANT.  127 

[*171]  joined  in  one  action.  In  the  case  *of  Moorehouse' s  Exec- 
utors V.  Ballou  and  others^  to  which  reference  has  already 
been  made,  this  sweeping  effect  of  section  120  of  the  Code  is 
doubted,  and  the  rule  of  the  old  supreme  court,  in  Miller  v.  Easton* 
and  JButler  v.  Rawson^  approved,  namely,  that  a  joint  action 
could  not  be  maintained  under  the  statute  as-ainst  several  defend' 
ants  on  a  promissory  note,  where  some  of  them  are  guarantors 
or  sureties  merely,  and  not  makers  or  indorsers;  "neither  does 
former  statutes,"  it  was  said,  "  nor  does  the  Code  authorize  defend- 
ants to  be  joined  whose  obligations  are  distinct  and  different,  or 
when  there  is  no  privity  of  contract  between  them."  *  Indeed,  it 
was  intimated  in  that  case  to  be  still  doubtful,  notwithstanding  the 
Code,  whether  two  out  of  three  joint  and  several  makers,  if  the 
objection  were  properly  taken,  could  be  made  jointly  liable.  This 
question,  however,  it  would  seem,  under  the  plain  language  of  the 
section  referred  to,  is  no  longer  open. 

In  respect  to  making  those  who  are  sued,^  on  account  of  another, 
parties  defendant,  such  as  committees  of  lunatics,  trustees  of  ex- 
press trusts,  as  provided  by  section  113  of  the  Code,  executors 
and  administrators,  etc.,  the  reader  is  referred  to  what  was  said 
on  a  former  page.^  [Although  a  lunatic  has  a  committee,  he  may 
be  prosecuted  personally  unless  restrained  by  the  court.*] 
[*1Y2]  *  Where  a  complainant  claims  in  opposition  to  a  deed 
of  trust  or  assignment  as  fraudulent  and  void,  he  may 
proceed  against  the  assignee  or  trustee  without  joining  the  ceS' 
tui  que  trust.''  The  trustee  or  assignee,  however,  is  a  necessary 
party ;  so,  also,  the  assignee  of  a  judgment  is  a  necessary  party  for 
a  perpetual  injunction  thereon.* 

A  creditor  of  a  deceased  person  may  bring  an  action  against  the 

'  16  Barb.  289.  names  of  both  appear  as  contracting 

2  2  Hill,  188.  parties. 

'  1  Denio,  105.  ^  Ante,  marg.  p.  140. 

*  This  doctrine  is  fully  approved  by  ^  Nichols  v.  Brown,  9  Abb.  N.  S.  1. 

the  New  York  Superior  Court  in  Le  "'  [The  editor  of  the  present  edition 

Roy  V.  Shaw,  2  Duer,  626.     The  action  does  not  assent  to  this  proposition  in 

was   held    to  have   been   improperly  the  case  of  a  trust,  as  the  term  is  ordi- 

brought  against   the   original   debtor  narily  understood.     A  cestui  que  trust 

and  his  guarantor,  and  the  rule,  under  cannot  be  deprived  of  his   interest  in 

the  Code,  was  considered  to  be,  that  the  trust  without  a  day  in  court.] 

persons  severally  liable  cannot  be  pros-  ^  And  see  this  subject  discussed  by 

ecuted  together  unless  they   are  sev-  C.  L.  Allen,  J.,  in  Wheeler  v.  Wheeler 

erally  liable  as  parties  to  a  written  e^  a^.,  9  How.  298. 
contract  or  obligation,  on  which  the 


128  PARTIES   TO   THE  ACTION.  [CH.  II. 

administrator  and  an  assignee  of  tlie  intestate  to  set  aside  an  as- 
signment by  the  intestate  in  his  life-time  made  to  defraud  credit- 
ors, where  the  administriator  claims  the  assignment  to  be  valid,  or 
after  reasonable  request  refuses  to  take  proceedings  to  impeach 
the  title  of  the  assignee  or  reach  the  property  in  his  hands  under 
such  assignment.  But  in  such  case  the  complaint  to  be  good 
must  allege  the  collusion  of  the  administrator  with  the  assignee, 
or  his  refusal  or  neglect  to  take  steps  to  impeach  the  assignment.' 
It  has  been  held  at  special  term''  that  the  Code  has  made  an 
important  change  in  enforcing  the  remedy  of  a  contract  creditor 
before  judgment  against  his  debtor,  and  the  assignees  of  such 
debtor,  under  an  alleged  fraudulent  assignment.  It  is  said  in  such 
a  case  that,  whenever  the  claim  of  the  creditor  is  undisputed,  he 

may  proceed  against  the  debtor  and  his  assignees,  in  the 
[*173]  same  action,  first  to  *obtain  judgment  for  the  debt,  and, 

secondly,  to  set  aside  the  assignment  as  fraudulent,  and 
obtain  the  usual  relief  thereon  as  against  the  assignees.  A  dif- 
ferent view  of  this  question,  however,  has  been  taken  in  practice 
in  one  or  two  cases  that  have  fallen  under  my  observation  which 
have  not  been  reported  ;  and  the  general  term  of  the  New  York 
superior  court  has  also  established  a  different  rule  in  the  case 
of  Neustadt  v.  Joel^  That  case  holds  expressly  that  a  general 
creditor  before  judgment  cannot  maintain  an  action  to  set  aside  an 
assignment  as  fraudulent  and  void  as  against  creditors,  and  that 
the  practice  in  this  respect  has  not  been  altered  by  the  Code. 

[An  action  in  the  nature  of  a  creditor's  bill  will  not  lie  until 
judgment  and  the  return  of  an  execution  unsatisfied.*  An  attach- 
ment creditor,  who  levies  upon  specific  property  and  thereby 
acquires  a  specific  lien^  may  justify  without  judgment.*  But 
such  a  creditor  cannot  maintain  an  equitable  suit  to  set  aside 
fraudulent  obstacles  in  the  way  of  his  enforcing  the  lien  /'  other- 
wise as  to  the  sheriff  holding  the  attachment,'  for  he  obtains  a 

J  Bate  V.  Graham,  1  Kern.  237.  Rinchey  v.  Stryker,  28  N.  T.  45,  26 

^  Mott  and  others  v.  Dunn  and  others,  How.  75,  31  N.  Y.  140 ;  Thayer  v.  Willet 

10  How.  225.  9  Abb.  325 ;  Skinner  v.  Oettinger,  14 

3  2  Duer,  530.  id.  109. 

*  Orippen  v.  Hudson,  13  N.  T.  161 ;  *  Oreenleaf  v.  Mumford,    85   How. 

Beardsley  Scythe  Go.  v.  Foster,  36  id.  152,  reversing  S.   C,    30   id.   30 ;  Me- 

561,  563,"  565;  Groser  v.  Stcllwagen,  25  chanir's,  etc..  Bank  v.  Dakin,  28  id.  503. 

id.  315,318.  ''  Kelley  v.  Lane,  42   Barb.  594  ;    28 

»  Fallon  V.  McCunn,  7  Bosw.  141 ;  How.  128 ;  18  Abb.  229. 


SEC.  ITI.]  OF   PARTIES   DEFENDANT.  129 

special  or  qualified  title.^  The  jplaintiff  in  tlie  attacliraent  can 
only  prosecute  the  actions  authorized  by  the  Code  (§  237,  subd.  4) 
on  complying  with  its  j)ro visions." 

The  receiver  of  an  insolvent  corporation  may  maintain  an 
action  against  stockholders  to  recover  dividends  paid  them  when 
the  company  was  insolvent  and  may  make  creditors  of  the  com- 
pany parties  for  the  purpose  of  restraining  them  from  proceeding 
against  the  stockholders  separately  to  recover  such  dividends.*] 

In  an  action  for  a  wrong^  the  person  committing  the  injury, 
either  by  himself  or  his  agent,  is  in  general  to  be  made  the  de- 
fendant. All  persons  who  direct  or  order  the  commission  of  a 
trespass,  or  the  conversion  of  personal  property,  or  assist  on  the 
occasion,  are  in  general  liable  as  principals,  though  they  may  not 
have  been  benefited  by  the  act ;  and  in  some  cases  a  party  may 
be  sued,  though  he  neither  committed  the  act  nor  assented  to  it, 
as  for  the  negligence  or  unskillfulness  of  a  servant  or  agent  while 
acting  in  the  course  of  his  employ ;  but  not,  however,  if  the  injury 
was  willful.  All  or  any  of  the  parties  to  a  tortious  act,  or  one 
alone,  may  in  general  be  sued  as  defendants.  At  least  such  was 
the  rule,  and  there  does  not  seem  to  be  any  thing  in  the 
[*1T4]  Code  to  render  all  joint  wrong-doers  necessary  parties  in  *an 
action  for  the  wrong.  [There  are,  however,  some  torts 
which,  in  legal  consideration,  are  regarded  as  the  separate  act  of 
each  wrong-doer,  and  a  joint  action  will  not  lie  against  two  or 
more,  as  an  action  on  a  penal  statute  ;*  or  for  verbal  slander ; 
though  a  joint  action  will  lie  for  libel  against  two  or  more  pub- 
lishers of  a  newspaper,  etc.^] 

There  are  general  and  well-settled  principles  governing  actions 
of  tort  including  trespass  to  real  estate,  or  to  persons  or  chattels, 
trespass  on  the  case  to  persons  or  property,  trover  and  the  like, 
and  it  cannot  be  necessary  in  this  place  to  enter  more  minutely 
into  the  subject,  as  the  rules  generally  applicable  to  common-law 

*  Rhonds  v.  Woodi,  41  Barb.  477.  ^  Townshend's  Libel  and  Slander,  §§ 
'  SIdner  v.  Stuart,  26  How.  489,  15     117-119.     The  reader  should  consult 

Abb.  391,  Code,  i^  2;!8.  this  valuable  work  to  ascertain  when 

^  OKgood  V,  Laytin,  3  Keyes,  521 ;  a  joint  action  will  lie  and  when  it  will 
Osgood  V.  Ogdeu,  4,  i&."Q;  ante,  marg.  not.  See,  also,  3  Conway  Robinson's 
V-  l''-  Prac.  123, 124.] 

*  [Miivfih  V.  Shvte,  1  Denio,230.  See, 
however,  Ingersoll  v.  Skinner,  id.  540 ; 
Conlcy  V.  Palmer,  2  N.  Y.  182.] 

17 


130  PARTIES   TO   THE   ACTION.  [CH.  II. 

actions  in  this  class  of  cases,  if  not  entirely  similar,  are,  at  least, 
of  easy  application  under  the  Code. 

It  may  be  remarked,  however,  in  reference  to  this  as  well  as 
every  other  kind  of  action  imder  the  Code,  that  where  two  or 
more  causes  of  action  are  united  under  section  167,  they  "  must 
affect  all  the  parties  to  the  action."  In  other  words,  parties  can- 
not be  joined  either  as  plaintiffs  or  defendants  unless  the  causes 
of  action  exist  in  the  same  right  in  favor  of  all  the  jjlaintiffs,  and 
against  all  the  defendants.^  This  principle  will  be  further  dis- 
cussed in  the  following  chapter  on  the  "  Joinder  of  Actions." 

It  is  to  be  observed,  too,  that  section  121  relative  to  the  sub- 
stitution of  parties  on  the  death,  marriage  or  other  disability  of  a 
party,  applies  to  defendants  as  well  as  plaintiffs.     This, 
[*175]  however,  is  only  in  case  *the  "  cause  of  action  survive  or 
continue." 

An  action  to  recover  the  ■  jpossession  of  jpersonal  property  is 
a  substitute  for  the  action  of  replevin  as  it  before  existed. 
[The  action  lies  against  a  wrong-doer  for  the  recovery  of  personal 
property,  although  he  has  not,  in  fact  or  law,  the  possession 
or  control  of  the  property  claimed."  And  the  party  having 
actual  custody,  though  a  mere  agent,  may  be  joined  as  a  de- 
fendant.'] 
[*1T6]  ^An  action  to  recover  the  jpossession  of  real  yrojyerty  is 
also,  under  the  statute  as  at  common  law,  a  possessory 
action.  It  could  not,  under  the  statute,  be  maintained  by  a  plain- 
tiff' against  a  person  merely  claiming  title  when  there  was  an 
actual  occupant,*  nor  could  such  person  claiming  be  joined  with 
the  actual  occupant,  except  on  his  own  application,  and  never  at 
the  election  of  the  plaintiff.^  [Otherwise  now  by  the  Code.*]  The 
phraseology  of  section  118  of  the  Code  and  the  seventeenth  section 
of  the  statute  (2  R.  S.  341,  2  Edm.  St.  352)  is  the  same:  ''Any 
person  may  he  made  a  defendant^''  but  this  has  been  expressly 
held,  under  the  statute,  to  mean  only  on  the  application  of  the 

'  4  How.  Pr.  48  ;  10  Barb.  S.  C.  G:J8 ;  ■»  2'  R.  S.  304,  §  4 ;  2  Edm.  St.  312. 

5  Sand.  S.  C.  G09.  The   panie   lias   been   held  at  circuit, 

\J  Nichols  V.  Michael,  23  N.  Y.  2G4;  since  the  Code;  [Ames  v.  Harper,  48 

Ellis  V.  Lersner,  48  Barb.  539  ;  Ross  v.  Barb.  Til,  before  amendment  of  5^  118.] 

Cassidy,  27  How.  416,  overruling  Roh-  '■>  2  K.  S.  341,  §  17, 12  Weud.  561, 502, 

erts  V.  R.mdd,  2  Saudf.  707,  and  other  25  id.  424. 

casesj  "  Code,  §  118;  Abeel  v.  Van  Oelder 

»  Haskins  v.  Kelly,  1  Abb.  N.  S.  63.  36  N.  Y.  513. 


SEC.  III.]  OF   PARTIES   DEFENDANT.  131 

jjersou  claiming  title,  where  there  was  an  actual  occupant,  and  not 
at  tlie  option  of  the  plaintiff.' 

The  same  rule,  allowing  a  landlord  to  come  in  on  his  own  ap- 
plication and  defend  in  an  action  of  ejectment  against  a  tenant, 

it  has  been  held,  prevails  under  the  Code." 
[*178]  *A  tenant  in  common,  not  in  possession,  is  not  a  neces- 
sary party  to  an  action  of  ejectment.' 
[*179]  [It  has  been  held,  under  the  Code,  that  parties  occupying 
different  rooms  in  the  same  house  may  be  proceeded  against 
jointly  by  the  general  owner  ;*  otherwise  if  they  occupy  distinct 
portions  of  the  premises  in  severalty,^  and  expressly  take  the 
objection  by  answer  or  demurrer,*] 

In  action  to  foreclose  a  mortgage  the  owner  of  the 
[*180]  *  equity  of  redemption  is  a  necessary  party.'  But  the 
mortgagor,  though  he  is  personally  liable  for  the  debt,  is 
only  a  proper  and  not  a  necessary  party  to  a  bill  of  foreclosure 
against  his  grantee,  and  the  grantee  cannot  object  that  the  mort- 
gagor is  not  a  party.*  The  assignee  of  a  bond  and  mortgage  may 
make  the  assignor,  who  guaranteed  their  collection,  a  party,  in 
order  to  obtain  a  judgment  against  him  for  the  deficiency."  And 
where  a  mortgage  is  assigned  as  a  mere  security  for  a  debt,  or 
where  but  a  part  of  the  mortgage  debt  is  assigned,  the  assignor  is 
a  necessary  party  to  a  complaint  tiled  to  foreclose  the  mortgage.'" 
But  if  the  assignment  be  absolute  and  unconditional,  tlie  same 
rules  apply  as  in  the  case  of  other  assignments.  The  assignor  is 
not  a  necessary,  and,  perhaps,  not  a  proper,  party  to  the  suit." 

One  claiming  adversely  to  the  mortgagor  cannot  be  made  a 
party  for  the  purpose  of  trying  the  title.'"  On  a  bill  to  foreclose 
a  mortgage,  all  subsequent  incumbrancers  existing  at  the  com- 
mencement of   the  suit  should  be  made  parties;"    and  where 

'  Shaver  v.  Mc9raw,  12  Wend.  558.  '  10  Paige,  409. 

*  Godfrey  v.  Townsend,  8  How.  Pr.  *  G  Paige,  343. 

898.  9  9  Paige,  90. 

=*  14  Barb.  S.  C.  118.  ^\Christie  v.  Herrick,  1  Barb.  Ch.  255  , 

*\^Fosgat6\.HerldmerManufacturing  Kittle  v.  Van  Dyck,  3  Leg.  Obs.  126.] 

and  Hydraulic.  Co.,  12  N.  Y.  580,  affirm-  "  See  ante,  marg.  jrp.  157,  158,  159. 

iiig  12  Barb.   352,  on  second  appeal ;  '-  6  Paige,  035,  2  Barb.  S.  C.  20,  3 

contra  to  S.  C.  on  first  appeal,  9  id.  Barb.  Ch.  438 ;    [see   Moak's  note  to 

288.]  Clarke's  Ch. ,  marg.  p.  252.] 

'  [Dil'aye  v.  M^son,  43  Barb.  261,  265 ;  '^  4  Johns.  Ch.  605,  3  id.  459,  Act  of 

see  9  id.  288.]  1844,  amending    act  of  1840,  1   Barb 

«  [JJiiUiye  V.  Wilson,  43  Barb.  201  ;  Ch.  490. 
Anifii  V.  Harper,  48  id.  57.] 


132  PARTIES   TO   THE   ACTION.  [OH.  II. 

legacies  are  charged  upon  the  land,  legatees  are  necessary  parties, 
though  the  mortgage  is  subsequent  to  the  charge/      It  is  not 

necessary  or  proper  to  make  the  executor  of  a  mortgagor 
[*181]  a  party  defendant.     The  party  *  in  interest  is  the  heir." 

[The  representative  should  clearly  be  made  a  defendant, 
if  a  decree  for  a  deficiency  is  sought.  It  is  true  the  statute  pro- 
vides that  the  heir  or  devisee  shall  pay  it.^  This,  however,  simply 
settles  the  rule  of  liability  as  between  heir  and  executor,  and  does 
not  deprive  the  mortgagor  of  his  right  to  a  decree  over  against 
the  executor.*]  But  the  personal  representative  of  a  mortgagor 
should  be  a  party  to  a  bill  for  the  execution  of  a  trust  for  sale  by 
way  of  mortgage;  an  account  cannot  be  taken  in  his  absence.* 
And,  in  general,  all  persons  having  an  interest  in  the  equity  of 
redemption  should  be  made  parties.'  And  whether  the  incum- 
brancers are  prior  or  subsequent  to  the  mortgage,  they  are  proper 
if  not  indispensable  parties  to  a  complaint  for  foreclosure.' 

In  an  action  for  the  partition  of  lands.  It  was  held,  previous 
to  the  Revised  Statutes,  that  neither  a  mortgage  nor  judgment 
creditor  was  a  proper  party  to  a  partition  suit,  and  their  rights 
could  not  be  affected  by  a  sale.*  But  the  Revised  Statutes  have 
altered  the  rule,  and  have  authorized  the  court  to  decree  a  sale 
which  will  give  the  purchaser  a  perfect  title,  discharged  from  all 
liens  and  incumbrances.  By  statute  it  is  not  necessary  iii  the  first 
instance  to  make  a  creditor,  having  a  lien  on  the  premises  by 
judgment,  decree,  mortgage  or  otherwise,  a  party  to  the  proceed- 
ings. And  this  provision  has  been  recognized  as  applicable  to  a 
complaint  for  partition  under  the  Code."  But  the  complainants 
may,  at  their  election,  make  every  creditor,  having  a  specifio 
lien  on  the  undivided  estate  or  interest  of  any  of  the  parties  by 
mortgage,  devise  or  otherwise,  a  party  to  the  proceedings."  Every 
person  entitled  to  dower,  if  it  has  not  been  admeasured, 
[*182]  must  also  be  a  party."     *If  the  wife  does  not  join  with 

'  6  Johns.  Cla.  450.  '  Id.  3  Johns.  Ch.  459  [see    Moak's 

*  Edw.  on  Parties,  93,   1  Johns.  Ch.  notes  to  Clarke's  Ch.  marg.  p.  252,  and 

252.  cases  cited  to  the  contrary]. 

3  1  R.  S.  749,  §  4,  1  Edm.  Stat.  700.  »  3  Johns.  Ch.  130 ;  1  Paige,  469. 

■^  Rohiiison  v.  liobinson,  1  Laus.  117;  '  Bogardiis  v.  Parker  and  others,  7 

Wright  V.  Ilolhrook,  32  N.  Y.  587,  2  How.  Pr.  305. 

Rob.  587.  '"  2  R.  S.  318,  marg.  p.,  §§  8,  9,  3 

'-  Edw.  on  Parties,  97.  Paige,  27. 

«  Story's  Eq.  PI.  17.  "  Id. 


SEC.  III.]  OF   PAETIES   DEFENDANT.  133 

her  husband  in  such  action,  the  objection  may  be  taken  by- 
answer  if  it  does  not  appear  on  the  face  of  the  complaint.'  But 
it  is  said  that,  in  such  action  by  the  wife  for  her  separate  property, 
the  husband  is  not  a  proper  party  plaintiti?  [The  safer  course  is 
for  the  wife,  in  an  action  for  partition,  to  make  her  husband  a 
party  defendant.  It  is  doubtful  whether  he  is  a  necessary 
party,  but,  as  it  is  uncertain  how  the  court  will  decide  as  to  the 
husband's  rights  as  tenant  by  the  curtesy,  it  is  better  to  make  him 
a  defendant.]  Tenants  in  common  (unless  owners  unknown) 
must  all  be  parties,  otherwise  a  partition  cannot  be  decreed.' 
Where  a  person  has  parted  with  his  title,  and  no  relief  is  prayed 
for  or  against  him,  he  is  not  a  proper  party  to  an  action  for  the 
partition  of  real  estate/  Before  the  Code  it  was  held,  that,  where 
the  title  was  denied,  or  not  clearly  established,  a  bill  for  partition 
could  not  be  sustained ;  but  the  bill  would  be  retained  to  give  the 
plaintiff  an  opportunity  of  establishing  his  title  at  law.*  [This 
rule  has  not  been  abrogated  by  the  Code.'] 

>  8  How.  Pr.  456  [1  Story's  Eq.  Jur.,        ^  j  Johns.  Ch.  14. 
g^  eSo-ti^i?] .  *  Florence  v.  Hopkins,  46  N.  Y.  182. 

'  ^2  8  Hovv-.  Pr.  389  [but  see  ^cZ;%  v.  As    to    who    are    proper    parties     in 

Tarbox,o^.  N.Y.  564;  Palmer  v.  Bams,  actions  for  other  equitable  or  specific 

28  id.  242"! .  relief,  see  Story's  Eq.  PI.,  Lube's  PI., 

3  2  Barb.  Cli.398.  Mitf.  Eq.  PI.,  Edw,  on  Parties,  Barb. 

*  7  Barb.  225,  2  Barb.  Ch.  407.  on  Parties,  etc. 


[*183]  ^CHAPTER  111. 

OF  THE  JOINDER  OF  ACTIONS. 

The  Code  provides  for  the  joinder  of  actions  as  follows : 

"  The  plaintiff  may  unite  in  the  same  complaint  several  causes  of 
action,  whether  they  be  such  as  have  been  heretofore  denominated 
legal  or  equitable,  or  both,  where  they  all  arise  out  of: 

"  1.  The  same  transaction  or  transactions  connected  with  the 
same  subject  of  action  ; 

"  2.  Contract,  express  or  implied ;  or, 

"3.  Injuries  with  or  without  force,  to  persons  and  property,  or 
either;  or, 

"4.  Injuries  to  character;  or, 

"  5.  Claims  to  recover  real  property,  with  or  without  damages,  for 
the  withholding  thereof,  and  the  rents  and  profits  of  the  same;  or, 

"  6.  Claims  to  recover  personal  property,  with  or  without  dam- 
ages, for  the  withholding  thereof;  or, 

"  7.  Claims  against  a  trustee,  by  virtue  of  a  contract,  or  by  opera- 
tion of  law. 

"  8.  But  the  causes  of  action,  so  united,  must  all  belong  to  one  of 
these  classes ;  and,  except  in  actions  for  the  foreclosure  of  mortgages, 
must  affect  all  the  parties  to  the  action,  and  not  require  different 
places  of  trial,  and  must  be  separately  stated. 

"  9.  In  actions  to  foreclose  mortgages  the  court  shall  have  power 
to  adjudge  and  direct  the  payment  by  the  mortgagor  of  any  residue 
of  the  mortgage  debt  that  may  remain  unsatisfied  after  a  sale  of  tlie 
mortgaged  premises,  in  cases  in  which  the  mortgagor  shall  be  per- 
sonally liable  for  the  debt  secured  by  such  mortgage ;  and,  if  the 
mortgage  debt  be  secured  by  the  covenant  or  obligation  of  any  per- 
son other  than  the  mortgagor,  the  plaintiff  may  make  such  person 
a  party  to  the  action,  and  the  court  may  adjudge  payment  of  the 
residue  of  such  debt  remaining  unsatisfied,  after  a  sale  of  the  mort- 
gaged premises  against  such  other  person,  and  may  enforce  such 
judgment  as  in  other  cases."^ 

The  conflicting  decisions,  made  before  the  amendments 
[*184]  *in  respect  to  the  joining  .of  causes  of  action  for  both  legal 
and  equitable  relief,  have  already  been  noticed.''  The 
amendments  have  settled  the  practice  in  this  respect,  by  provid- 
ing, in  terms,  that  claims  for  both  legal  and  equitable  relief  may 
be  united  in  the  same  action.     In  Alger  v.  Scoville^  it  was  said, 

'  Code,  i^  167.  3  6  How,  Pr.  131. 

*  Ante,  chap.  I,  §  3. 


CH.  III.]  JOINDER   OF   ACTIOISTS.  135 

cliat  an  nction  could  not  be  maintained  on  a  contract  against  one 
defendant,  united  with  a  cause  of  action  against  another  defend- 
ant, as  trustee ;  as,  for  example,  a  claim  against  one  defendant  for 
a  money  demand  and  interest,  with  a  claim  for  the  removal  of 
another  defendant  as  assignee.  It  was  also  held  a  sufficient  ground 
for  demurrer,  that  the  complaint  contained  distinct  causes  of 
action,  in  some  of  which  the  defendants  were  not  interested. 

The  amendments  contained  in  the  first  subdivision  of  the  above 
section,  it  has  been  supposed,  was  designed  to  reach  such  a  case, 
by  pro^  iding  that  causes  of  action,  whether  legal  or  equitable,  or 
both,  n light  be  joined  where  they  all  arise  out  of  '''■the  same 
trcmsaction  or  transactions  connected  loith  the  same  subject  of 
action  j^^  thus  authorizing  the  joinder  of  a  claim  for  the  recovery 
of  a  demand  on  a  contract,  with  a  claim  to  satisfy  the  same  de- 
mand out  of  property  in  the  hands  of  an  assignee  of  the  debtor, 
he  being  made  a  party  defendant  for  that  purpose. 

This  has  been  so  held,  in  effect,  in  Mott  cmd  others  v.  Dunn^ 
at  special  term, 
[*185]  *It  must  be  admitted  that  the  language  used  in  this 
cLiuse  of  the  section  is  somewhat  vague  and  indefinite,  and, 
in  the  absence  of  judicial  interpretation,  it  would  be  difficult  tc 
determine  its  true  signification.  Is  the  clause  to  be  construed  as 
the  controlling  clause  of  the  section,  and  as  qualifying  all  the  rest, 
so  as  to  allow  distinct  causes  of  action :  such,  for  example,  as  a 
contract,  and  a  claim  to  recover  personal  property,  to  be  joined, 
provided  they  both  or  all  arise  out  of  the  "  same  transaction  or 
transactions,  connected  with  the  same  subject  of  action  ? "  This 
might  seem  to  be  the  intention,  from  the  fact  that  the  section, 
before  the  amendment,  provided  "  that  causes  of  action  so  united 
must  all  belong  to  one  only  of  these  classes  "  —  and  by  the  amend- 
ment the  word  only  is  omitted.  Under  such  a  construction,  if  A 
imlawfully  take  possession  of  the  house  and  furniture  of  B,  and 
withholds  the  same,  B  might  be  allowed  to  unite  an  action  to 
recover  the  possession  of  the  personal  property,  with  an  action  to 
recover  the  real  property  (claiming  his  general  damages  for  with- 
holding both),  and  an  action  for  injury  done  to  the  personal  prop- 
erty and  freehold. 

I  10  How.  Pr,  225.     See  ante,  marg.  p.  153. 


136  JOINDEE    OF   ACTIONS.  [CH.  III. 

Or  was  tlie  amendment   intended  even  to  go  further, 
[*186]  and  permit  a  plaintiff  to  unite  distinct  causes  *of  action 
(arising  out  of  the  "  same  transaction,"  etc.),  against  dif- 
ferent defendants  having  different  rights,  interests,  and  independ- 
ent and  separate  defenses  ? 

I  think  it  may  be  safely  assumed  that  the  legislature  never 
intended,  by  the  amendment  in  question,  to  give  this  section  any 
such  sweeping  and  indefinite  application.  This  would  seem  to  be 
apparent  from  the  very  nature  of  things,  independent  of  any 
judicial  construction.  If,  however,  a  doubt  had  existed  on  the 
subject,  it  would  seem  to  me  to  be  removed  by  the  decisions  made 
under  the  section,  especially  since  the  amendment. 

Thus,  in  Sinith  v.  Hallock^  it  was  held,  that  the  first  clause  of 
the  section,  "  the  same  transaction  or  transactions  connected  with 
the  same  subject  of  action,"  had  reference  to  such  causes  of  action 
as  are  consistent  ivith  each  other,  not  such  as  are  contradictory  / 
and  it  was  accordingly  held,  that  tlie  plaintiff  could  not  join  in  his 
complaint  a  claim  to  recover  the  possession  of  real  estate  and 
damages  for  withholding  the  same,  with  a  claim  for  damages  for 
obstructing  and  injuring  the  plaintiff  in  the  use  of  such  property. 
And,  in  the  still  later  case  of  Hulce  v.  Thompson,^  it  was  held, 
that  this  section  did  not  authorize  the  joining  of  a  claim  in  eject- 
ment for  a  house  and  door-yard,  with  a  claim  in  trespass  for  cut- 
ting grass  and  destroying  fences  on  the  farm.  In  that  case,  how- 
ever, the  decision  was  placed  upon  the  ground  that  the  causes  of 
action  mentioned  in  the  complaint  did  not  arise  out  of  the  same 
transaction,  nor  were  they  connected  with  the  same  subject 
[*187]  of  *action.  "  The  claim  in  ejectment,"  says  Mr.  Justice 
Cbippen,  "  arises  from  the  defendant  refusing  to  surrender 
to  the  plaintiff  the  possession  of  the  house  and  door-yard.  This, 
then,  as  a  transaction,  has  no  connection  whatever  with  the  tres- 
passes of  the  defendant  in  cutting  the  plaintiff's  grass,  destroying 
his  fences,  etc.  ;  they  are  entirely  distinct  and  unconnected  trans- 
actions, liaving  no  affinity  or  relation  to  each  other."  And  again, 
referrincr  to  the  various  subdivisions  of  the  section :  "  The  causes  of 
action  that  may  be  united  in  the  same  action  must  all  belong  to  one 
of  the  classes  contained  in  the  above-quoted  sections  of  the  Code. 

•  8  How.  Pr.  73.  *  9  How.  Pr.  113 


CH.  III.]  JOINDETl   OF   ACTIONS.  1^^? 

Each  subdivision,  it  is  fair  to  presume,  was  iuteiulcd  to  provide  for 
a  class  of  cases  not  included  in  either  of  the  other  subdivisions." 

The  recent  case  of  Jerolimon  v.  Cohen^'  in  the  New  York 
superior  court,  is  a  case  in  point,  to  show  the  application  of  the 
rule,  that  causes  of  action  may  be  joined,  whether  legal  or  equi- 
table, when  they  all  arise  out  of  "  the  same  transaction,"  etc. 
[*188]  In  that  case  it  was  adjudged  that  a  complaint  might  *claim 
to  recover  damages  for  an  alleged  breach  of  a  written 
agreement,  and  at  the  same  time  averring  that  the  agreement  was 
erroneous  in  form  through  the  fraud  of  the  defendant,  might  seek 
to  have  it  reformed,  so  as  to  have  it  correspond  with  the  real  con- 
tract. "  There  is,  in  reality,"  says  the  court,  "  but  one  controversy 
which  it  is  desirable  should  be  settled  in  a  single  action,  and  it 
cannot  be  necessary,  before  relief  in  form  can  be  asked,  to  com- 
mence a  prior  and  independent  suit  to  reform  the  written  contract. 
Unless  the  fraud  be  proved,  so  that  the  written  agreement  ceases 
to  be  a  barrier  to  proof  of  the  contract,  as  it  is  averred  to  have 
been,  the  plaintifts  will  fail  in  their  action.  Whether  the  mat- 
ters alleged  properly  constitute  a  single  cause  of  action,  or  sub- 
stantially separate  causes  of  action,  yet  they  all  arise  out  of  the 
same  transaction  or  transactions  connected  ^^ith  the  same  subject 
of  action.  kSuch  causes  of  action,  where  several  exist,  although,  as 
in  the  present  cases,  one  may  be  legal  and  another  equitable,  may 
now  be  united  in  the  same  complaint." 

And  in  the  still  more  recent  case  of  Spier  et  al.  v.  Robinson  et 
al.^  it  was  held,  that  a  claim  for  a  specific  performance  of  a  con- 
tract to  convey  land,  and  for  the  payment  of  a  reasonable  sum  for 
the  use  and  possession  thereof,  were  not  two  distinct  causes  of 
action,  and  might  be  united.  This  was  put  upon  the  equity  doc- 
trine that  justice  required  that  the  plaintiff  should  have  full  com- 

1  Diier  Sup.  C.  629.  «  9  Hew.  Pr.  336. 

Note.  —In  the  late  case  of  Lamoremix  v.  T/ie  Atlantic  Mutual  Insurance  Company,  re- 
ported in  the  New  York  Times,  of  September  36, 1854,  the  complainant  claimed  to  recover 
damages  for  the  sum  of  $700,  on  a  policy  of  insurance,  and  also  prayed  that,  "  if  the  same 
be  iiecessary,  said  policy  be  reformed  in  such  manner  as  fully  and  clearly  to  express  the 
intention  and  agreement  of  the  parties."  The  comi)Iaiut  did  n  it  state  what  words 
had  l)een  omitted  to  be  written  in  the  policy,  nor  what  precise  reformation  was  sought. 
On  a  motion  to  make  the  complaint  more  definite  and  certain,  Bosworth.  J.,  with 
the  concurrence  of  Duer  and  Hoffman,  held  the  statement  defective,  but  gave  the 
plaintiff  liberty  to  amend,  as  he  might  be  advised,  and,  in  default  of  his  aniendine', 
ordered  the  words  "  that  if  the  same  be  necessary  "  to  be  struck  out. 

18 


138  JOINDEE   OF   ACTION'S.  [CH.  Ill 

pensation  for  the  wrong  done  him,  namely,  a  deed  for  the 
[*189]  land,  *and  payment  of  the  rents  and  profits,  in  the  same 

action. 
These  principles  by  no  means  conflict  with  the  doctrines  laid 
d  .)wn  in  the  cases  of  Smith  v.  Hallock  and  Hulce  v.  Thompson^ 
jnst  cited.  They  seem  to  establish  the  proposition  that  the  sub- 
division under  discussion  was  designed  to  apply,  generally,  to 
that  class  of  cases  heretofore  denominated  equitable,  and  to  allow 
such  a  claim  to  be  joined  with  a  legal  claim  when  both  grow  out  of 
"  the  same  transaction,  connected  with  the  same  subject  of  action." 
It  will  be  evident  on  a  moment's  reflection  that  it  can  have  but 
a  limited  application,  in  common-law  cases.  Thus,  in  the  case  of 
JIulce  X.  Thompso7i,  sv/pra,  the  "  subject  of  the  action,"  properly, 
was  i\\Q  possession  of  the  real  estate  claimed,  that  is,  the  house  and 
lot ;  and  the  right  of  action  was  based  upon  the  unlawful  with- 
holding ;  and  an  action  for  trespass  to  the  land,  though  perhaps 
arising  out  of  the  same  transaction,  the  unlawful  withholding  was 
not  "  connected  with  the  same  subject  of  action,"  i.  e.,  the  posses- 
sion of  the  land.  Precisely  the  same  rule  would  hold  good  in 
other  cases,  and  has  been  applied,  as  for  example,  in  Furniss  v. 
Brown^  wherein  the  plaintifi"  sought  to  obtain  possession  of  a 
steamboat,  of  which  he  claimed  to  be  the  owner  under  a  contract 
with  the  defendant,  which  was  set  forth  in  the  complaint,  and  in 
the  same  complaint  claimed  money  damages  for  a  breach  of  the 

contract,  the  joinder  was  held  bad  on  demurrer.  Though 
[*190]  perhaps  the  cause  of  action  might  be  *said  to  arise  out  of 

"  the  same  transaction,"  namely,  the  contract,  yet  the  one 
was  by  no  means  "connected  with  the  same  subject  of  action  " 
embraced  in  the  other,  and,  therefore,  the  section  did  not  author- 
ize their  joinder  in  the  same  complaint.  And  in  the  still  later 
case  of  Colwell  v.  The  New  Yorh  and  Erie  Railroad  Co.^  a 
sim'ilar  rule  was  applied,  it  being  held,  that  a  claim  for  damages 
against  the  defendant,  a  railroad  company,  for  wrongful  taking 
and  injury  to  cattle  could  not  be  joined  with  a  claim  against  the 
comp  my,  founded  on  an  agreement  to  carry  the  cattle  on  the 
railroad,  or  a  claim  against  such  company  on  its  liability  as  a  com- 
mo.i  carrier.     An  action  asrainst  a  common  carrier,  it  was  said 

•  18  How.  Pr.  191.  "  9  How.  Pr.  312. 


CH.  III.]  JOINDER   OF   ACTIONS.  139 

founded  on  tlie  contract,  could  not  be  joined  with  an  action 
against  him  for  injuries  to  personal  propert3\  The  causes  of  ac- 
tion belonged  to  difi'erent  subdivisions  of  section  167  of  the  Code, 
and  did  not  fall  under  the  first  subdivision  of  that  section.  But 
a  claim  strictly  legal,  as  to  recover  an  alleged  balance  due  on  a 
building  contract,  and  for  extra  work  and  material,  and  for  dam- 
ages sustained  by  reason  of  being  hindered  and  delayed  in  the 
completion  of  the  work,  may  be  joined  with  an  equitable  claim  to 
set  aside  for  fraud  and  undue  influence  an  award  made  by  an 
arbitrator  in  relation  to  certain  disputes  growing  out  of  the  same 
contract,  as  in  See  and  others  v.  Partridge.^  Such  claims  are 
regarded  as  arising  out  of  "the  same  transaction"  and  "con- 
nected with  the  same  subject  of  action  ;  "  and  on  the  same 
[^191]  principle,  it  would  seem,  with  that  *recognized  in  Jeroli- 
mon  V.  Cohen,  and  similar  cases  above  noticed. 
[The  following  actions  may  be  joined :  Goods  sold  and  money 
had  and  received,  although  the  money  was  received  for  property 
wrongfully  taken  by  defendant  if  plaintift'  elect  to  waive  the  tort, 
as  he  may  do  ; "  malicious  prosecution,  libel  and  slander ; '  for  the 
action  of  malicious  prosecution  is  founded  upon  the  injury  to 
character,*  so  that  a  recovery  therefor  bars  an  action  for  slander 
growing  out  of  it,^  and  lies,  although  no  arrest  be  made  or 
injury  to  the  person  sustained;'  the  arrest,  if  any,  is  only  one  of 
the  items  of  damages.'  It  is  otherwise  with  slander  and  false 
imprisonment.*  Assault  and  battery  and  false  imprisonment 
may  be  joined ;  °  so,  it  seems,  false  imprisonment  and  malicious 
prosecution;'"  injuries  to  person  and  to  property;"  for  cutting 
and  removing  timber,  and  for  removing  firewood  already  cut,  and 
converting  it,  followed  by  averments  of  injiuy,  to  the  inheritance 

'  2  Duer,  463.  accusation  ;  Rockwell  v.  Brown,  36  N, 

2  Hawk  V.  Thorn,  54  Barb.  164  ;  see     Y.  207. 

post,  marg.  p.  249.  "  Panghurn  v.  Bnll,  1  Wend.   345 

3  Watson  V.  Hazard,  3  Code  R.  218  ;  1  HJll.  on  Torts  (2d  ed.)  479,  note. 
Mnrtin  v.  Mattuon,  8  Abb.  3,  affirmed,  '  Stapp  v.  Parton,  Dudley  (Ga.)  176 
10  id.   246,   note  ;    Hull    v.    Vreeland,  «  Add.  on  Torts  (3d  En/?,  ed.)  903 , 
18    id.   182,  42   Barb.  543    (see   post.  Guest  v.Warren,2  ¥.^d.\.'ild ;  Render- 
marf).  p.  194).  son  v.  Jackson,  9  Abb.  N.  S.  293. 

*  Hilliard  on  Torts  (2d  ed.)  478.  »  Sheldon  v.  Lake,  9  Abb.  N.  S.  306. 

'•'  Shelden  v.  Carpenter,  4  N.  Y.  579  ;        '"  Henderson  v.  Jackson,  2  Sweeny, 

Rockwell    V.  Brown,  36    id.   207;    not  324. 

so,  however,  for  ditferent  utterances,        "  Code,  ^  167,subd.  3  ;  Howe  v.  Peck- 

although  alluding  to  the  same  general  ham,  10  Barb.  656. 


140  JOINDER  OF  ACTIONS.  [CH.  III. 

and  reversionary  interest  of  plaintiff,  if  it  affect  all  the  defend- 
ants ;  *  a  claim  for  damages  for  not  printing  and  binding  a  work, 
and  for  injuries  to  the  stereotype  plates  while  in  defendant's  pos- 
session for  use  in  such  printing ; '  in  an  action  by  the  plaintiff  as 
assignor  of  a  mortgage  assigned  to  defendant  as  collateral  security 
for  the  payment  of  plaintiff's  promissory  notes ;  a  claim  for  the 
surplus  arising  on  the  sale  of  the  mortgaged  premises,  and  for  the 
surrender  of  the  plaintiff's  notes,  may  be  joined;'  so,  also,  for 
legal  and  equitable  relief,  when  consistent ;  as  to  reform  a  contract 
and  enforce  it ;  *  but  an  action  cannot,  on  the  trial,  be  sustained 
on  the  theory  of  a  tort  if  the  complaint  be  based  upon  a  contract.' 
An  action  against  a  jiidgment  debtor  and  different  grantees,  at 
various  times,  if  the  transfers  were  made  pursuant  to  a  general 
scheme  to  defraud  the  debtor's  creditors.*  So  a  transferee  without 
consideration  ma,j  be  joined  with  plaintiff's  assignee,  in  an  action 
to  set  aside  the  sale  as  fraudulent/  The  plaintiff  may  join  an 
equitable  action  for  dower,*  with  a  claim  for  damages  for  withhold- 
ing the  same,*  although  a  portion  only  of  the  defendants  have 
received  the  rents  and  profits."  The  consignee  of  goods  may 
join  with  an  action  against  a  carrier  for  the  loss,  waste  or  wrong- 
ful conversion  of  goods,  a  claim  to  recover  back  a  sum  over- 
paid by  plaintiffs  to  defendants  on  account  of  the  goods."  So 
agains*:  a  constable  (1)  for  levying  on  sufficient  goods;  (2) 
neglecting  to  return  the  execution ;  (3)  for  keeping  and  detain- 
ing the  money  received  on  the  same.*'  So  a  claim  for  detaining 
property,  and  wrongfully  and  negligently  injuring  it  during  the 

1  Code,  §  167,  Bubd.  3 ;   Badgers  v.  '  Wade  v.  Rusher,  4  Bosw.  537 ;  Ver- 
Jones,  11  Barb.  595.  meule  v.  Beck,  15  How.  333. 

2  Badger  v.  Benedict,  4  Abb.  176, 1  *  Townsend  v.    Townsend,  2  Sandf. 
Hilt.  414.  711 ;  Brown  v.  Brown,  31  How.  498,  4 

3  Galhoon  v.  Bank  of  Utica,  7  N.  T.  486.  Rob.  700,  clearly  overruling  the  doc- 

*  Qridley  v.  Qridley,    24  N.  Y.  136,  trine  laid  down  in   Wood  v.    Clute,  2 

and  authorities  cited ;   Ifew  York  Tee  N.  Y.  Leg.  Obs.  407,  by  the  Assistant 

Co.  V.  Northwestern,  etc.,  23  N.  Y.  375,  Vice  Chancellor. 

12  Abb.  414,  21  How.  296  ;   Barloic  v.  ^  Van  Name    v.     Van  Name,    23 

ScMt,  24  N,  Y.  40 ;   McKeon  v.  See,  4  How.  247 ;  Code,  §  167,  subd.  5 ;  Bo 

Rob  465.  gardus  v.  Parke,  7  How.  305,  but  see 

^  Lewis  V.  Mott,  36  N.  Y.  395.  'Tompkins  v.  White,  8  How.  520. 

«  Reid  V.  Stryker,  12  Abb.  47,  Court  '<>  Id.   Vandevoort  v.  Oould,  36  N.  Y. 

of  Appeals,  reversing  6  Abb.  109  ;  Law-  646. 

rrnce  v.  The  Bank,  etc.,  35  N.  Y.  324 ;  "  Adams  v.  Bissell,  28  Barb.  882. 

Ba-^.k,  etc.,  v.  Suydam,  6  How.  379.  ^^  Moore  v.  Smith,  10  How.  361. 

381,382. 


CH.  III.]  JOIISTDER   OF   ACTIOlSrS.  141 

detention.*  So  for  goods  sold,  and  to  rescind  a  contract  of  sale, 
and  recover  the  price  immediately  on  the  ground  that  the  credit 
was  fraudulently  procured.'' 

Several  causes  of  action  can  be  united  in  one  complaint  only 
where  each  cause  afl'ects  all  the  parties  to  the  action ;  ^  and  they 
must  be  in  favor  of  all  the  plaintiiFs  and  against  all  the  defend- 
ants, and  must  belong  to  the  same  class,  although  they  need  not 
affect  all  the  parties  equally.^  A  complaint  in  partition  is  not  bad 
because  it  sets  up  a  claim  of  one  defendant  for  a  specific  lien,  and 
of  another  defendant  for  moneys  paid  to  extinguish  liens,  and  asks 
an  account  to  be  taken  of  such  advances.*  So  a  claim  for  specific 
performance,  and  one  for  the  use  of  the  land,  may  be  joined.' 
(See  ante,  marg.p.  153,  as  to  ^\\&t  parties  may  join  or  be  joined.) 

A  complaint  may  embrace  both  legal  and  equitable  causes  of 
action  if  otherwise  properly  joined.  The  legal  causes  may  be 
tried  by  a  jury,  and  the  equitable  ones  by  the  court.'  Altliongh 
it  has  recently  been  held  that  in  such  case  all  the  issues  must 
be  tried  by  a  jury.*  So,  in  an  action  by  a  receiver,  the  subject  of 
the  action  being  the  restitution  of  the  judgment  debtor's  property, 
the  plaintiff  may  unite  all  the  different  claims  which  he  has  upon 
that  subject  of  action  against  defendant,  and  set  forth  different 
transactions  out  of  which  his  right  to  restitution  arises,  although, 
to  reach  that  result  in  some  instances,  it  will  be  necessary  to 
set  aside  transfers  void  for  usury*  —  but  the  receiver  of  an 
insolvent  corporation  must  sue  its  stockholders  separately  upon 
their  unpaid  subscription ;  "  otherwise,  to  enforce  the  liability  of 
stockholders  to  creditors  of  the  corporation,  and  to  restrain  the 
creditors  from  prosecuting  the  stockholders." 

The  following  cannot  be  joined:  Assault  and  battery  and  slan- 
der '°  —  for  one  involves  an  injury  to  the  person,  and  the  other  to 

>  Smith  V.  Orser,  43  Barb.  187.  overruling  House  v.  Coojyer,  30  Barb 

2  Both    V.    Palmer,    27    Barb.    652 ;  157, 16  How.  292,  so  far  as  this  point 

Wiffandv.  Sieliel, do  Row.  174:,  SKeyes,  was  involTed. 
120  ;  Campbell  v.  Wright,  21  How.  9.  *  People  v.  Albany,  etc.,  5  Lans.  25. 

^  Lexington,   etc.,    v.    Goodman,    15        '  Palen  v.  Bushndl,  48  Barb.  24,  re- 
How.  85,  5  Abb.  493,  25  Barb.  469.  versing,  18  Abb.  301. 

*  Vermeule   v.   Beck,  15  How.  333;         ^°  Calkins  v.  Atkinson,  2   Lans.   12. 
Brady  v.  Weeks,  3  Barb.  157.  '^  Calkins  v.  Atkinson,  2  Lans.  12  ; 

*  Bogardus  v.  Parker,  7  How.  305.        Story  v.  Farman,  25  N.  Y.  214. 

*  Spier  V.  Robinson,  9  How.  325.  '^  Anderson    v.   Hill,  53   Barb.  238, 
'  Davis    V.    Morris,    36    N.  Y.   569,    overruling  Brewer  v.  Temple,  15  }[ow 

affirming  35  Barb.  227,  and  in  effect    286. 


142  JOINDER   OF   ACTIONS.  [CH. 

character.'  It  seems  a  claim  against  a  broker  for  damages  for 
fraudulently  selling  land,  and  one  against  the  jpurchaser  for  a 
reconveyance  or  accounting ;  *  although  this  may  be  doubted,'  for 
the  right  of  action  grows  out  of  the  wrongful  transfer,  and  a  recon- 
veyance would  only  be  one  of  the  alternative  methods  of  relief  to 
which  the  plaintiff  may,  in  a  certain  contingency,  become  entitled. 
A  contract  by  the  testator  and  one  by  his  executor  cannot  be 
joined  ;  *  nor  can  an  action  for  an  absolute  divorce  on  the  ground 
of  adultery,  and  for  a  limited  divorce  on  account  of  cruelty,  or 
mce  versa!"  In  an  action  for  an  absolute  divorce  the  plaintiff  may 
propei'ly  incorporate  in  the  complaint  allegations  that  he  or  she 
has  not  voluntarily  cohabited  with  the  defendant  since  the  discov- 
ery of  the  adultery  ;  that  five  years  have  not  elapsed  since  the 
discovery  thereof,  etc.,  etc.*  Cruel  treatment  after  condonation 
of  adultery  revives  it.'  Cases  may  arise  where  the  right  to  a 
divorce  on  account  of  the  adultery,  made  the  basis  of  the  action, 
has  been  condoned  and  re\dved  by  cruel  treatment.  In  such 
cases  the  plaintiff  cannot  truthfully  make  the  required  allegations 
and  verify  them.  It  would  be  proper  to  allege  the  adultery,  the 
subsequent  cohabitation,  condonation,  etc.,  and  then  set  out  the 
facts  showing  that  since  the  same  the  defendant  had  been  guilty 
of  cruel  and  inhuman  treatment ;  that  the  condition  on  which  the 
condonation  was  granted  has  not  been  complied  with.  The 
cruelty  is  not  in  such  case  a  cause  of  action,  and  a  judgment  deny- 
ing an  absolute  divorce  to  the  plaintiff"  would  not  bar  an  action 
for  a  limited  divorce  on  account  of  the  same  acts  of  cruelty. 

Although  the  plaintiff  may  waive  a  tort  and  sue  for  goods 
sold  and  delivered,  money  had  and  received,  etc.,  he  cannot  make 
the  tort  the  gra\}a7nen  of  an  action,  and  join  with  it  an  action 
for  money  had  and  received  ;*  nor  can  he  join  a  cause  of  action  in 
tort  with  one  upon  an  implied  assumpsit ;°  nor  an  action  upon  a 

'  Anderson  v.  Hill,  53  Barb.  238  ;  Barb.  9  ;  id.  27  How.  5  ;  Griffin  v.  Orif- 

Code,  §  167,  subds.  3,  4.  fin,  23  id.  183. 

■^  Gardner  v.  Ogden,  22  N.  Y.  327.  «  Sup.  Ct.  Rule  (1870),  No.  87,  2  R.  S. 

3  Reed  v.  Stryker,  12  Abb.  47 ;  Law-  145,  ^  42,  2  Edm.  St.  151  ;   Myers  v. 

reace  v.  Tlte  Bank,  etc.,  35  N.  Y.  324.  Myers,  41  Barb.  114  ;  Zorkowski  v.  Zor- 

*  Benjamin  v.  Taylor,  12  Barb.  338  ;  koiP.tH,  27  How.  37. 

Ferrin  v.  Myrick,Ai  N.  Y.  315,  revers-  ''  2  Bish.  on  Mar.  and  Div.  (4th  ed.), 

iug,  53  Barb.  76.  g^  53-66. 

^  Mcintosh  V.  McTn1osli,\2  How.  289;  «  rohb  v.  Dows,  9  Barb.  230;  Boyei 

Henry  v.  Henry,  17  Abb.  411  ;   id.  40  v.  Tiedman,M  lud.  72. 

^  Hunter  v.  Powell,  15  How.  221 


Cjj    ni.]  JOINDER   OF   ACTIONS.  143 

warranty,  and  for  fraud  in  regard  to  the  same  transaction;'  and 
although  the  plaintiff  may  join  a  right  of  action  lor  rents  and 
profits  of  land  with  one  for  its  recovery,  he  cannot  jom  an  acuou 
for  damages  to  lands  with  one  for  its  recovery  ^  nor  a  clann   or 
damages  in  obstructing  plaintiff  in  the  use  ot  land  with  one  lor 
its  recovery  ;^  nor  for  a  penalty  in  consequence  of  the  domg  ol  an 
act,  and  for  an  injunction  to  restrain  the  doing  of  the  act,  as  from 
erecting  a  wooden  building   forbidden   by   lire  laws;     nor  tor 
damages  for  converting  personal  property,  and  for  a  redelivery 
thereof;'  nor  trespass  and  ejectment ;«  nor  for  a  breach  of  a  con- 
tract to  convey  real  estate  to  plaintiff,  and  an  assault  and  battery 
upon  plaintiff,  and  forcibly  taking  the  contract  from  lum ;    nor 
against  a  husband  for  his  wrongful  act,  and  also  for  a  separate 
wrongful  act  of  his  wife ;'  nor  by  husband  and  wife  m  such  case. 
But  if  the  wrong,  as,  for  instance,  slander,  be  the  result  of  a  con- 
spiracy by  two,  they  may  be  jointly  sued,  though  husband  and 
wife  -  although  Mr.  Townsend  lays  down  the  rule  that  the  action 
shou'ld  be  for  a  conspiracy  to  defame."     An  action  for  money  re- 
ceived and  one  for  false  imprisonment  cannot  be  joined,  although 
it  be  aUeged  they  both  arose  out  of  the  same  transaction." 

A  plaintiff  cannot  unite  causes  of  action  to  recover  specific  per- 
sonal property  and  a  demand  for  damages  for  a  breach  of  contract  ■ 
A  cause  of  action  against  A,  for  obstructing  the  plaintiff  s  right 
of  way,  and  against  B  for  continuing  it,  cannot  be  joined.  A 
complaint  cannot  contain  distinct  causes  of  action  m  which  only 
some  of  the  defendants  are  interested."  If  two  causes  of  action 
be  improperly  joined,  and  it  so  appear  upon  the  fece  of  the 
complaint,  unless  the  defendant  demur  for  a  misjoinder  he  cannot 

^  Sweet  V.   Ingerson,  13   How.  331;     r,r,3 ;  To^ynsend•s  Libel  and  Slander,  i 

Bp^;La  V.  l.son,  14  Abb  328         H?  ;  3  C.nw.  Kob  Jr.  123  1.^4.         ^^ 

2  Hotchkiss  V.  Auburn,  etc.,  66  Barb.  Mann  v.  iua,6„, 


How.  373. 


>-8,nim  y.  Hallo.^.  8  How.  73.  "S  Co"W  Rob  Pr  123  134 ;  Fatun 

-i»™,  V.  .l'*.«.  12^  How.  840;  '■4«;'2„V.Sd;?a;/d'Li.>e..§lia 

^?'£»M  '/.-^'low.  230 .  ;: 5;.™;-/«t„t« ^%. e,,, 

Bpalding^.Spnldmg,ZiA.2%l.  t amiss  ^.  x,, 

'Buddy    Bingham,  ^S  Barb.   494;  note              5,,^,,;,,  ,,,.,  39  Barb.  391. 

Hulre  V.  TIun>ip>;on^  9  Hc.sv.  Ho.  ^e^sj^  Samll  i\  How.  131  ;  Brady 

^^W«v.ir««<3r,6Bosw.661,10Abb.  ^    ^^^^l^^,^,   Wdls  v.  Jewett 

"^Mnlone  V.   StUwe..,  15   Abb.   431;  ^  How.  343 ;    TT...'.  v.  iJacZ.^.,  38  i^ 

Forsyth  V.  Edmidon,  3  id.  431,  5  Duer,  330,  18  Abb.  o96. 


144  JOINDEE  OF  ACTIONS.  [OH.  III. 

take  advantage  tliereof  on  the  trial.*  A  motion  to  compel  the 
party  to  elect  upon  which  cause  of  action  or  defense  he  will  rely 
is  addressed  to  the  discretion  of  the  court,  and  its  decision  thereon 
cannot  be  reviewed  on  appeal."  Final  judgment  for  costs  may 
be  awarded  against  a  party  for  an  inipi-oper  joinder  unless  he  take 
steps  to  procure  a  separation  of  the  causes.^  [See  ante,  viarg.  jo. 
153,  as  to  what  parties  may  join  or  be  joined.] 

Though  the  clause  of  the  section  under  consideration,  therefore, 
presents  some  difficulties,  and  it  is  no  easy  matter  to  define  accu- 
rately its  true  limits,  yet,  from  the  decisions,  it  certainly  appears 
that,  as  a  general  thing,  the  courts  have  been  disposed  to  restrict 
rather  than  extend  its  operation.  By  a  careful  examination  of 
the  subject,  in  the  light  of  these  decisions,  we  find  that  the  rule 
as  to  the  joinder  of  different  rights  of  action  (without  regard  to 
fonii)  in  common-law  actions  at  least,  has  been  modified,  merely, 
and  not  abolished.  Nor  is  there  any  thing  in  the  section  counte- 
nancing the  idea  that  a  plain tiif  may  unite  distinct  causes  of  action, 
though  arising  out  of  the  same  transaction,"  etc.,  against  difierent 
defendants,  having  diSerent  rights,  interests  and  independent  and 
separate  defenses.     Let  us  briefly  examine  this  question  :* 

Under  the  former  practice,  the  joinder  of  actions  was  generally 
considered  with  reference  to  two  things,  namely :  first,  the  join- 
der of  difierent  forrns  of  action ;  and,  second,  of  difierent  rigltts 
Of  action.  Difierent  forms  of  action  could  not,  as  a  general  thing, 
be  joined,  as  an  action  of  assumpsit  and  debt,  or  assumpsit  and 
covenant,  though  both  arose  upon  contract.  But  if  the  form  of 
action  was  the  same,  the  plaintifi*  might  unite  as  many  causes  of 
action  in  the  same  declaration  as  he  pleased ;  as,  for  example, 
debt  on  a  simple  contract,  wdth  debt  on  a  bond  or  other  speciality. 
These  distinctions,  with  respect  to  the  form  of  the 
[*192]  action,  are,  of  course,  abrogated  by  the  Code;  and  *the 
only  distinction  recognized  is  that  which  respects  difierent 
rights  of  action.  These  are  classified  by  the  Code  as  set  forth  in 
the  section  above  quoted ;  and  thougli  the  classification  is  essen- 
tially difierent  from  the  former  system,  and  allows  the  plaintifi'  a 
nmch  wider  latitude  in  the  joinder  of  causes  of  action  than  for 

I  Blossom  V.  Barrett,  37  N.  Y.  434.  *  Boyes  v.  Tiedman,  34  Ind.  72. 

« Kerr  v.  Hayes,  35  N.  Y.  331,  *  See  ante,  marg.  p.  153. 


CH.   III.]  JOINDER   OF   ACTIONS,  145 

merly,  yet,  it  is  said,  that  subject  to  this  different  classification, 
the  rules  to  determine  what  causes  of  action  may  be  joined  are 
not  changed,*  Different  riglits  of  action,  therefore,  not  existing 
in  favor  of  all  the  plaintiffs  and  against  all  the  defendants, 
cannot  be  joined,  though  belonging  to  one  only  of  the 
several  classes  enumerated,''  Thus,  in  Torrvpkins  <&  White  v. 
White  c&  Robinson^  a  claim  against  two  defendants  to  recover  the 
possession  of  real  estate,  and  damages  for  the  unlawful  withhold- 
ing of  the  same,  and  a  claim  against  one  of  the  defendants  for 
moneys  received  for  rents  and  profits  of  the  premises,  for  which 
that  defendant  was  indebted  to  the  plaintiffs,  no  connection  being 
shown  between  the  alleged  withholding  of  the  possession  and 
those  rents  and  profits,  were  held,  on  demurrer,  to  be  improperly 
united  in  the  complaint.  And  so,  too,  in  the  case  of  Pugsley  v. 
Aiken^*  it  was  held,  that  the  old  common-law  principle  was  in 
force  under  the  Code,  that  a  cause  of  action  against  a  testator 
could  not  be  joined  with  a  cause  of  action  against  his 
[*193]  executors  personally.  The  rule,  it  was  said,  *which  au- 
thorized the  uniting  of  different  claims  against  a  trustee, 
by  virtue  of  a  contract,  or  by  operation  of  law,  but  did  not  permit 
a  claim  against  a  trustee  personally  to  be  united  with  a  claim 
against  the  estate  represented  by  him,  had  not  been  changed  by 
the  Code.  Within  this  rule  a  plaintiff  now,  as  formerly,  cannot 
bring  a  joint  action  against  two,  and  state  in  one  part  of  his  com- 
plaint that  one  of  them  assaulted  and  beat  him,  and  in  another 
part  that  the  other  defendant  took  away  his  goods,**  But  a  plain- 
tiff may  join  a  demand  due  him  in  his  own  right,  with  a  demand 
due  him  as  a  survivor ;  *  though  he  cannot  join  a  demand  in  his 
own  right  with  another  due  him  as  executor,'  nor  can  a  demand 
against  a  defendant,  as  executor,  be  united  with  one  against  him 
individually  ;*  nor  can  a  count  on  a  promise  by  husband  and  wife 
be  joined  with  a  count  on  a  promise  by  the  wife  dtim  sola  / " 
the  general  rule  being,  that  the  several  causes  of  action  should 

1  Enos  V.  Thomas,  4  How.  Pr.  48.  ^  2  Saund.  117 ;  4  T.  R.  360. 

^  De  Bidder    v.    Schermerhorn,    10  «  3  T.  R.  433  ;  5  id.  403  [Stafford  v. 

Barb.  S   C.  638.  Gold,  9  Pick.  533.] 

3  8  How.  Pr.  520 ;  See,  also,  12  Barb.  '  1  T.  R.  489  ;  3  id.  659  ;  4  Hill,  492. 
S.  C.  528.  8  4  Sand.  Ch.  31 

4  14  Barb.  S.  C.  114.  »  16  Johns.  281. 

19 


146  JOINDER   OF   ACTIONS.  [CH.   III. 

all  exist  in  tlie  same  Q'ight,  otherwise  they  cannot  be  joined. 
[A  surviving  partner  may  maintain  an  action  in  his  own  name 
for  a  debt  incurred  to  the  partnership  during  its  existence 
without  setting  out  the  partnership  or  the  death  of  his 
copartner  or  his  survivorship ; '  and  so  if  goods  be  sold  a 
firm,  and  one  of  them  dies,  assumpsit  may  be  brought  against 
the  survivor  without  notice  of  the  partnership  or  of  the  death 
of  one  and  the  survivorship  of  the  other.  ^  So  in  an  action 
for  the  conversion  of  personal  property,  brought  by  tenants  in 
common,  if  one  of  the  plaintiffs  dies  pending  suit,  the  action 
should  be  continued  by  the  survivors  without  joining  the  execu- 
tor of  the  deceased  plaintiff.*  It  has  been  held  otherwise  as  to 
real  estate*  but  the  case  is  very  meagerly  reported,  and  we  can 
see  no  reason  for  the  distinction ;  the  statute  certainly  makes  none.' 
And  where  the  debtor  paid  the  debt  to  the  executor  of  the  de- 
ceased partner,  the  court  held,  that  it  was  no  satisfaction  to  the 
surviving  partner  who  has  the  sole  right  of  suing  for  and  recover- 
ing the  moneys  due  to  the  company."  The  surviving  partner  is 
entitled  to  recover  of  the  representative  of  a  deceased  partner  the 
amount  he  has  received  in  satisfaction  of  a  partnership  demand. 
It  is  no  defense  that  he  is  bound  ultimately  to  pay  the  partner- 
ship debts  if  satisfaction  cannot  be  obtained  of  the  survivor.  He 
receives  the  money  in  trust  for  the  survivor.''  A  debt  due  from  the 
plaintiff  as  sm-viving  partner  may  be  set  off  against  a  debt  due 
from  the  defendant  in  his  own  right.*  If  the  surviving  part- 
ner has  no  interest  in  a  cause  of  action,  the  representatives  of 
a  deceased  one  may  maintain  an  action,'] 

'  Bernard  v.  Wilcox,  2  Johns.  Cas.  405 ;  Lmhaise  v.  Libby,  13  Abb.  6  ;  Mc- 

374 ;    Lachaise  v.   Libby,  13  Abb.  6  ;  Vean  v.  Scott,  46  Barb.  383  ;  Smith  v. 

Mc  Vean  v.  Scott,  46  Barb.  379  ;  1  Burr.  Barrow,  2  Term,  476. 

Pr.  60  ;  Grab.  Prac.  (1st  ed.)  59,  60  ;  »  Bucknam   v.    Brett,  13   Abb.  119, 

SmitJi  V.  Barroto,  2  Term,  476  ;  Matter  35  Barb.  596,  22  How.  233. 

of  Miller,   1  Paige,   445  ;    Murray  v.  ^  Dyckman  v.  Allen,  2  How.  17. 

Mumford,  6  Cow.  441,  Antb.  N.  P.  294 ;  ^2  R.  S.  386,  marg.p.,  §  1,2  Edm.  St. 

Case  V.  Aheel,  1  Paige,  393;   Egberts  401. 

V.  Wood,  3  id.  517 ;   Grant  v.  Slimier,  *  Wallace   v.  Fitzsimmons,  1   Dall. 

1  Wend.  148  ;   but   see   Ditclthura  v.  248,  250,  Com.  Pleas  Philadelphia  Co. 

Spracklin,  5  Esp.  31,  which  went  off  ''  McCarty  v.  Dixon,  2  Dall.  65,  note 

on  the  ground  of  variance  as  to  the  Supreme  Court  of  Penn. 

plaintiff  being  the  seller,  whereas  the  ^  French  v.  Andrade,  6  Term,  582  ; 

complaint  should  have  alleged,  simply.  Slipper  v.  Stidstone,  1  Esp.  48,  and  see 

that  defendant  was  indebted  to  plain-  Day's  note  ;  Matter  of  Miller,  1  Paige, 

tiif  for  goods  sold  and  delivered.  445. 

*  Goelet  V.  McEinstry,  1  Johns.  Cas.  '  Hackett  v.  Belden,  40  How.  289. 


€H.  Ill]  JOINDER   OF   ACTIONS.  147 

Before  the  amendment  to  the  section  of  the  Code,  which  de- 
fines what  causes  of  action  may  be  joined,  it  was  held,  that  a  claim 
for  surplus  monej  received  on  a  mortgage,  given  as  security  for 
the  payment  of  certain  promissory  notes,  could  not  be  joined  in  a 
complaint  with  a  claim  founded  on  a  refusal  to  deliver  up  the 
notes  alleged  to  have  been  paid.'  Also,  that  claims  for 
[*194]  injuries  to  personal  property,  *and  to  recover  its  posses- 
sion, are  substantially  different  causes  of  action." 

But  the  former  of  these  decisions  has  been  reversed  by  the 
court  of  appeals,'  the  claim  being  held  substantially  single.  Quere, 
whether  malicious  prosecution  is  not  an  injury  to  the  person 
as  well  as  to  character,  and  may  not,  under  subdivision  3,  as 
amended,  be  joined  with  an  action  for  assault  and  battery,  tres- 
pass to  property,  real  or  personal,  and  criminal  conversation.* 
Criminal  conversation  with  the  wife  is  said  to  be  an  in- 
jury to  the  person  of  the  husband ;'  and,  of  course,  the  three 
last-mentioned  causes  of  action  may  be  united  in  the  same 
complaint. 

Under  this  subdivision  the  plaintiff  may  unite  different  claims 
against  the  same  person  or  persons  for  every  kind  of  injury  to  his 
absolute  or  relative  rights  of  person  or  property,  except  only  that 
class  known  exclusively  as  injuries  to  character. 

So,  too,  under  the  second  subdivision,  he  may  unite  actions 
arising  on  every  species  of  contract,  express  or  implied,  sealed  or 
unsealed,  in  writing,  on  judgment,  or  by  parol. 
[*195]  Under  the  fifth  subdivision,  which  authorizes  the  plain- 
tiff to  unite  "  claims  to  recover  real  property,  with  or 
without  damages  for  the  withholding  thereof,  and  the  rents  and 
profits  of  the  same,"  the  plaintiff,  in  an  action  to  recover  the  pos- 
session of  the  land,  may  recover  for  the  use  of  the  land  while  the 
defendant  has  kept  him  out  of  possession  ;  or,  at  his  option,  may 
recover  the  land  in  one  action,  and  afterward  bring  his  action  for 
the  rents  and  profits." 

The  joinder  of  these  different  causes  of  action,  however,  in  all 

'  Cfihoon  V.   Bank  of  Utica,  4  How.  "■  Ante,  marg.  p.  191. 

Pr.  423 ;  7  id.  134.  e  3  Black.  Com.  139,  4  How.  Pr.  284. 

'■^  Spalding  v.  Spalding,  3  How.  Pr.  «  Livingston  v.  Tanner,  12  Barb.  S. 

297  ;  Dows  v.  Green,  id.  377.  C  483. 

^  Cahooa  v.  BanJc  of  Utica,  3  Seld. 
486.  also  7  How.  Pr.  4(31. 


148  JOINDER   OF   ACTIONS.  [CH.  HI. 

cases,  is  limited  by  the  provision  of  the  Code  that  they  must 
"affect  all  the  parties  to  the  action,  and  not  require  different 
places  of  trial,  and  must  be  separately  stated." 

1st.  They  must  affect  all  the  parties  to  the  action;  that  is, 
within  the  rule  as  above  stated,  they  must  all  exist  in  the  same 
right,  in  favor  of  all  the  plaintiffs  and  against  all  the 
[*196]  defendants.  As  in  the  case  *of  LeRoy  v.  Shaw,  above 
cited,*  where  it  was  contended  that  a  guarantor  might  be 
sued  with  the  maker  of  a  written  instrument,  inasmuch  as  the 
causes  of  action,  though  several,  arose  out  of  the  same  transaction, 
etc.,  connected  with  the  same  subject  of  action.  But  the  court 
said  that  the  answer  to  this  was,  that  neither  cause  of  action 
"  affects  all  the  parties  to  the  action."  A  plaintiff  cannot  sue  two 
defendants  on  a  joint  contract,  and  unite  a  claim  on  a  separate 
contract  against  one  of  them.  And  see,  further,  the  preceding 
chapter  as  to  the  joinder  of  parties. 

2d.  The  causes  of  action  so  joined  must  not  require  different 
places  of  trial.  Thus,  in  an  action  to  recover  real  estate  situated 
in  one  county,  a  claim  to  recover  lands  in  another  county  cannot 
be  joined,  because  actions  to  recover  real  property  must  be  tried 
in  the  county  where  the  land  is  situated."  So,  also,  in  an  action 
to  recover  personal  property  distrained,  actions  against  public 
officers,  etc. 

3d,  The  actions  so  united  must  also  be  separately  stated ;  but 
if  not  so  stated,  the  complaint  cannot  be  demurred  to.'  The 
rules  of  the  supreme  court  require  also  that  they  shall  not 
only  be  separately  stated,  but  plainly  nuTnbered*  A  neglect 
to  comply   with  this  rule  would    not    be  a  proper  ground  of 

demurrer,  the  defect  being  merely  formal. 
[*19Y]       *  The  remedy  is  by  motion.*     The  separate  statements 

of  different  causes  of  action  required  by  the  Code  is 
equivalent  to  separate  counts  under  the  old  system,  and  each 
cause  of  action  must  be  distinctly  set  forth  by  itself.  Thus  it  was 
held  that  different  causes  of  action  in  slander,  as  for  words  alleged 

'  2  Duer,  626.  *  Rule  25.     The  rule  applies  to  an- 

*  Code,  ^  123.  swer  and  reply  as  well  as  complaint. 
2  I  shall  examine  this  question  fur-        '  8  How.  Pr.  83  ;  [Henderson  v.  Jack- 

ther  in  the  subsequent    chapter    on  son,  2  Sweeny,  324,  330.] 

"  The  Demurrer."    Post,  ch.  VII,  §  11. 


CH.  III.]  JOINDER   OF   ACTIONS.  149 

to  have  been  spoken  of  the  plaintiff  in  one  place,  and  words 
alleged  to  have  been  spoken  of  him  in  another,  could  not  be 
joined,  unless  each  distinct  slander  was  separately  stated  by  itself 
in  a  separate  count.* 

[JSTot  only  must  each  count  or  cause  of  action  be  set  out  by 
itself,  but  it  must  be  perfect  and  complete  in  and  of  itself;"  and 
must  not  require  a  reference  to  other  counts  to  sustain  it  f  but,  in 
order  to  avoid  repetition,  allegations  of  facts  which  form  a  part  of 
several  causes  of  action  may  be  once  stated,  and  may  thereafter 
be  incorporated  in  each  cause  of  action  by  appropriate  words  of 
reference,  instead  of  repeating  them  at  length  in  each  ;*  but  such 
reference  must  be  clearly  and  specifically  made,"  as,  for  instance,  in 
slander,  that  the  words  were  spoken  "  of  and  concerning  the  plain- 
tiff in  his  said  trade  and  business  of  a  merchant,  and  of  and  con- 
cerning his  said  books  of  account,  which  he,  the  plaintiff,  kept 
with  his  customers  and  others,  as  such  merchant  as  afore- 
said:"^ 
[*198]  *  [The  words,  "for  a  further  and  separate  cause  of 
action,"  do  not  necessarily  make  a  separate  cause  of  action, 
if  it  be  apparent  the  complaint  contains  but  one,  and  that  all  the 
allegations  may  be  properly  applied  to  it.'  Although  such  is  the 
proper  method  of  indicating  the  commencement  of  a  new  cause 
of  action,  and,  if  such  words,  or  their  equivalent,  be  not  used, 
all  the  allegations  not  necessary  to  a  single  cause  of  action  will 
be  stricken  out  on  motion.*] 

But  the  Code  does  not  require  or  permit  the  severing  of  a  single 
cause  of  action.  Thus,  in  an  action  for  the  negligence  of  the 
defendant,  it  has  been  held,  at  special  term,'  that  the  com- 
plaint might  properly  set  forth,  in  one  statement,  allegations 
of  injury  to  both  the  property  and  person  of  the  plaintiff.     The 

'  Pike  V.  Van  Wormer,  5  How.  Pr.        *  Xenia,  etc.,  v.  Lee,  7  Abb.  372,  2 

171  •  \ Hughes  v.  Bees,  4  Mees.  &  Welsb.  Bosw.  694 ;  Nestle  v.  Van  Slyck,  2  HUl, 

204.]  282 ;  Loomis  v.  Swick,  3  Wend.  205 ; 

2  jSfelson  V.  Swan,  13  Johns.  483 ;  Lat-  see  post,  marg.  p.  536.       ,„  _    ,    ... 
tin  V.  McCarthy,  8  Abb.  225,  less  fully        ^  Simmons  v.  FaircUld,42  Barb.  404 ; 

reported,  17  How.  239  ;  Bitchie  v.  Gar-  see  post,  marg.  p.  536. 
rison,  10  Abb.  246,  1  Abb.  Forms  of        «  Lomnis  v.  Swick,  3  Wend.  205 ;  see 

Pleadings,  114,  note  o;  see  post,  marg.  post,  marg.  p.  536. 
„  53g  '  mUman  v.  EiUman,  14  How.  456, 

'^Xe7iia,  etc.,  v.  Lee,  7  Abb.  372,  2        ^  Benedict  v.  Seymour,  6  How.  298. 
Bosw  694  1  Abb.  Forms  of  Pleadings,        »  Howe  v.  Peckham,  6  How.  Pr.  229 

114,  note  o;  see  post,  marg.  p.  536.  10  Barb.  S.  C.  656,  per  Mason,  J. 


150  JOINDER   OF   ACTIOjS^S.  [CH.  III. 

ground  of  tlie  action  was  the  negligence,  and  all  the  injuries  re- 
sulting from  the  act  of  negligence  constituted  but  a  single  cause 
of  action.  The  court  says,  in  that  case,  "the  legislature,  in  using 
the  term  "  several  causes  of  action'''  in  this  section,  must  have  had 
reference  to  the  causes  of  action  as  they  were  then  founded,  limited 
and  defined  by  the  common  law,  for  there  was  no  other  resort  to 
ascertain,  what  constituted  a  cause  of  action."  This  agrees,  in  the 
main,  with  what  was  said  by  Justice  Harris,  in  Enos  v.  Thomas,^ 
that  the  Code  "  has  not  changed  the  rule  as  it  previously  existed 
by  which  to  determine  what  causes  of  action  might  and  what 
might  not  be  joined,  although  it  had  changed  the  classification  of 
actions.  Now  as  before,  the  causes  of  action  to  be  joined  must 
be  in  favor  of  all  the  plaintifis  and  against  all  the  defendants,  and 

must  all  belong  to  the  same  class."  ^ 
[*199]  The  several  causes  of  action  must  be  separate  and  inde- 
pendent claims,  and  not  the  same  claim  stated  in  difierent 
counts  in  a  declaration.'  In  a  case  at  special  term  in  the  third 
district,*  this  was  held  unnecessary  rejpetition  and  bad  pleading, 
and  a  motion  was  granted  to  strike  out  all  but  one  statement,  or 
compel  the  plaintiff  to  elect  by  which  he  would  abide  ;  and  the 
same  thing  has  been  since  more  than  once  decided.  [The  Code 
does  not,  however,  under  all  circumstances,  prohibit  the  use  of 
more  than  one  count  founded  upon  the  same  instrument  or  trans- 
action ;  and  where  the  complaint  contains  two  counts  founded 
upon  the  same  instrument,  which  differ  materially  in  substance, 
and  are  inserted  for  the  purpose  of  sustaining  two  different  and 
distinct  claims,  the  court  will  not  compel  the  plaintiff  to  elect 
between  such  counts,  nor  strike  out  either  of  them  as  repetitions  ;* 
but  such  a  method  of  pleading  should  be  allowed  with  great  cau- 
tion ;•  and  the  court  should  not,  in  the  exercise  of  its  discretion, 
allow  an  amendment  by  which  two  inconsistent  counts  upon  the 
same  instrument  would  be  inserted  in  the  complaint,  especially  if 

'  4  How.  Pr.  48.  ■*  Stockhridge  Iron  Co.  v.  Mellen,  5 

"^  See  this  subject  further  discussed,  How.  Pr.  439. 

post,  chap,  vii,  §  2.  *  Birdseye  v.  Smith,  33  Barb.  217  ; 

^  [Dickens  v.  Ifew  York,  etc.,  13  How.  Jones  v.  Palmer,  1  Abb.  442  ;  but  see 

228;   Fern  v.  VanderUlt,  13  Abb.  72;  Sheldon    v.  Adams,  27  How.  182,183. 

Nash  V.  McCauley,  9  id.  159  ;   Whittier  opinion  of  Bockes,  J. 

V.  Bates,  2  id.  477  ;  Ford  v.  Mattice,  14  *  Jones  v.  Palmer,  1  Abb.  442,443. 
How.  91 ;  Churchill  v.  Churchill,  9  id. 
553.] 


OH.  III.]  JOINDER   OF   ACTIOT^S.  151 

the  cause  of  action  sought  to  be  inserted  is  barred  by  the  statute 
of  limitations.*  The  proper  remedy  in  such  case  is  by  motion  to 
compel  the  plaintiff  to  elect  which  count  shall  stand  and  to  strike 
out  the  others,^  because  the  fact  that  the  causes  of  action  con- 
tained in  the  complaint  are  one,  can  usually  only  be  made  to 
appear  by  affidavit ;  ^  but  if  such  fact  appear  upon  the  face 
of  the  complaint  no  affidavit  is  necessary  ;*  a  demurrer  will 
not  lie  on  the  ground  that  several  causes  of  action,  which  may  be 
included  in  one  complaint,  are  improperly  joined  in  one  count.^ 
See  post,  marg.  p.  351.] 

It  was  very  correctly  remarked,  in  a  case  decided  before  the 
last  amendment,*  that  the  commissioners  probably  had  in  view 
actions  at  law  merely,  and  not  equitable  actions,  when  they 
framed  section  167.  The  nature  of  these  actions  was  well  under- 
stood and  their  character  well  defined.  There  cannot  be,  there- 
fore (independent  of  the  ambiguity  arising  from  subdivision  1, 
which  has  just  been  noticed),'  much  difficulty  in  determining 
what  actions  may  be  joined  under  each  of  the  other  subdivisions, 
and,  as  the  subject  will  be  again  incidentally  treated  of  in  the 
chapter  on  The  Demurrer,*  it  will  not  be  necessary  longer  to  dwell 
upon  it  here. 

It  should  be  observed,  however,  that  there  is  a  large  class  of 
actions  in  which  relief  was  formerly  administered  on  the  equity 
side  of  the  court,  which  do  not  strictly  belong  to  either  one  of 
these  subdivisions,  and  for  the  joinder  of  which,  therefore, 
[*200]  the  Code  lays  down  no  rule,  except  that  prescribed  in  *the 
first  subdivision,  namely,  where  different  causes  of  action 
arise  out  of  "  the  same  transaction  or  transactions,"  etc.  Such 
are  actions  for  divorce,  to  correct  mistakes  in  written  instruments, 
to  set  aside  a  deed  for  fraud,  to  establish  a  trust,  etc.,  etc.,  and, 
generally,  most  of  the  various  species  of  claims  for  equitable  relief. 
It  would  be  too  much  to  say,  on  the  one  hand,  that,  because  the 

>  Sheldon   v.  Adams,  37  How.  179,  ^  Hillman  v.  HUlman,  14  How.  456; 

182,  opinion  of  Bockes,  J. ;  S.  C.  more  Dorman  v.  Kellam,  id.  184, 4  Abb.  203, 

f  ally,  including   opinions   of  Bockes  post,  marg.  p.  347. 

and  Potter,  JJ.,  18  Abb.  405,  41  Barb.  ^  Durkee  v.  Saratoga  Railroad  Co.,  4 

54  How.  Pr.  236. 

'  Fern  v.  VanderUlt,  13  Abb.  73.  '  Ante,  pp.  185-191. 

'  Lackey  v.  VanderUlt,  10  How.  155.  ^  Post,  ch.  vii,  §  3. 

*  Ford  V.  Mattice,  14  How.  91. 


152  JOINDER  OF   ACTIONS,  [CH.  III. 

Code  is  silent,  no  two  such  causes  of  action  can  be  joined  in  one 
complaint,  or,  on  the  other,  that,  for  the  same  reason,  the  plaintiff 
might  join  as  many  as,  and  what,  he  pleased,  no  matter  how  dis- 
similar and  incongruous  they  may  be,  as,  for  example,  an  action 
to  set  aside  an  assignment  for  fraud,  with  an  action  against  assignor 
and  assignee  to  foreclose  a  mortgage.  On  the  contrary,  the  rule 
is  otherwise ;  and  the  plaintiff,  it  is  believed,  may  unite  with 
each  other  several  causes  of  action  not  properly  classified  under 
either  of  the  seven  subdivisions  of  section  167,  in  the  manner  and 
to  the  same  extent  as  he  formerly  might  do  in  the  same  class  of 
actions  in  equity.  And  see,  further,  as  to  what  causes  of  action 
may  be  so  united,  and  what  is  multifariousness,  and  when  a  mis- 
joinder is  demurrable,  post,  chapter  vii,  section  2. 


[*20i]  *  CHAPTER  lY. 

THE  COMPLAINT. 

The  first  pleading  on  the  part  of  the  plaintiff  is  the  complaint. 
This  is  a  substitute  at  once  for  the  old  chancery  complaint  m  a  suit 
in  equity,  and  for  the  declaration  in  an  action  at  law. 

A  declaration  under  the  old  system  was  defined  to  be  a  specifica- 
tion in  a  metliodical  and  legal  form  of  the  circumstances  whichcon- 
stitute  the  plaintiff's  cause  of  action.  The  most  important  requisites 
of  the  declaration  were,  1st,  that  it  correspond  with  the  process ;  2d, 
that  it  contain  a  statement  of  all  the  facts  necessary  m  point  of  law 
to  sustain  the  action,  and  no  more ;  and  3d,  that  these  circumstances 
be  set  forth  with  certainty  and  truth. 

A  bill  in  equity  was  a  petition,  in  writing,  addressed  to  the  person 
or  persons  for  the  time  being,  having  the  custody  of  the  great  seals 
of  Great  Britain  (under  our  system  to  the  chancellor),  containing  a 
statement  of  the  complainant's  case,  showing  his  right  or  title  to 
what  he  claims,'  or,  as  defined  by  Judge  Story,'  "  a  written  state- 
ment of  the  plaintiff,  containing,  in  a  due  legal  form,  the  facts  of 
the  case  on  which  he  grounds  his  title  to  relief,  or  to  some  equitable 

interposition  or  aid  from  the  court." 
r*202]  *  The  com.plai?it  provided  by  the  Code  may  be  said  to  em- 
brace both  these  definitions,  dispensing,  however,  with  the 
« leo-al  form  "  which  each  of  them  recognized.  In  other  words,  it 
unites  the  bill  in  equity  and  the  declaration  at  common  law.  Sec- 
tion 142  declares  what  the  complaint  shall  contain :  ^ 

1st.  The  title  of  the  cause,  specifying  the  name  of  the  court  in 
which  the  action  is  brought,  the  name  of  the  county  in  which  the 
plaintiff  desires  the  trial  to  be  had,  and  the  names  of  the  parties  to 
the  action,  plaintiff  and  defendant. 

2d.  A  plain  and  concise  statement  of  the  facts,  constituting  a 
cause  of  action,  without  unnecessary  repetition.  , 

3d.  A  demand  of  the  relief  to  which  the  plaintiff  supposes  him- 
Belf  entitled.  If  the  recovery  of  money  be  demanded  the  amount 
thereof  shall  be  stated.^  ,  ^    e 

Each  of  these  requisites  of  the  complaint  will  be  treated  ot  separ  • 
ately,  in  this  chapter,  in  the  following  order 

1st.  Tlie  title. 

2d.    Tlie  statement  of  facts. 

3d.    The  demand  for  relief. 

» Lnbe's  Eq.  PL  18.  '  Code,  §  143. 

»  Story's  Eq.  PI.,  §  4. 
20 


154  TITLE   OF  THE   COMPLAINT.  [CH.  IV. 

The  remaining  sections  of  the  chapter  will  consist  of  other  mat- 
ters proper  to  be  spoken  of  in  connection  with  the  complaint,  as 
follows : 

1st.  The  verification. 

2d.    Supplemental  complaint. 


SECTION  I. 

THE  TITLE  OF  THE  COMPLAINT. 

The  complaint  must  contain  the  title  of  the  cause,  speci- 
[*203]  fying  the  name  of  the  court  in  which  the  action  *  is  brought, 
the  name  of  the  county  in  which  the  plaintiff  desires  the 
trial  to  be  had,  and  the  names  of  the  parties  to  the  action,  plain- 
tiff and  defendant. 

An  omission  to  state  either  of  these  particulars  is  an  irregular- 
ity which  is  to  be  corrected,  it  seems,  not  by  demurrer,  it  not 
coming  within  any  of  the  grounds  specified  as  causes  of  demurrer,* 
but  by  motion  to  set  aside  the  complaint  for  the  irregularity  f  and 
the  plaintiff,  after  notice  of  such  a  motion,  can  amend  his  com- 
plaint only  on  payment  of  the  defendant's  costs.'  This  has  been 
directly  held  in  cases  where  no  mention  was  made  in  the  com- 
plaint of  the  county  where  the  plaintiff  desired  the  trial  to  be  had.* 

In  Hill  V.  Thacter^  a  motion  was  made  to  set  aside  the  com- 
plaint on  the  ground  of  irregularity,  it  not  containing  the  proper 
title  of  the  cause  in  respect  to  the  names  of  the  parties.  The 
motion  was  entertained  and  heard  on  the  merits,  but  denied, 
among  other  things,  on  the  ground  that  the  title  in  this  respect 
was  sufficiently  set  forth  in  the  hody  of  the  complaint.  The  Code, 
it  was  said,  does  not  specify  in  what  part  of  the  complaint  the  title 
shall  be  found. 

It  is  said,  however,  that  in  a  court  of  limited  jurisdiction,  where 
the  trial  can  be  had  in  only  one  county,  a  complaint  will  be  good 
though  it  omits  to  specify  the  name  of  the  county.* 

If  the  name  of  the  court  be  omitted,  the  objection, 
[^204:]  *it  is  presumed,  will  be  taken  the  same  way,  namely,  by 

'  By  g  144 ;  see,  also,  post,  chap,  vii,  note  ;  [Prudden  v.  City  of  Loekport,  4C 

§  2.       '  How.  46.] 

2  mUiams  v.  Wilkinson,  1  C.  R.  N.  S.        *  Hall  v.  Huntley,  1  C.  R.  N.  S.  21. 
20.  6  3  How.  Pr.  407,  2  C.  R.  3. 

3  Hall  V.  Huntley,  1  C.  R.  N.  S.  21,        « 1  Code  Rep.  39. 


SEC.  I.]  THE   COMPLAINT.  155 

motion  to  set  aside  the  complaint  for  the  irregularity.  A  demur- 
rer by  the  Code  is  allowed  where  the  complaint  does  not  state 
'■''facts  sufficient  to  constitute  a  cause  of  action^''  so  that  a  mere 
omission  to  state  the  name  of  the  court  in  the  title  is  not  such  a 
defect  as  can  be  taken  advantage  of  by  demurrer.* 

But,  though  it  is  a  fatal  objection  to  the  pleading,  if  the  name 
of  the  court  is  not  set  forth  either  in  the  summons  or  complaint,' 
yet,  it  has  been  recently  held,  that,  if  the  summons  contains  the 
name  of  the  court,  though  it  be  omitted  in  the  complaint,  yet  the 
defect  willbe  cured  under  section  176  of  the  Code,  and  the  com- 
plaint will  not  for  that  reason  be  set  aside.'  The  same  rule,  how- 
ever, it  is  thought,  does  not  apply  to  the  case  of  an  omission  to 
set  forth  the  place  of  trial,  and  has  been  so  decided  by  Justice 
Mitchell,  at  a  special  term  in  the  first  district.*  Such  an  irregu- 
larity, it  was  held,  was  not  waived  by  obtaining  further  time 
to  answer,  and,  it  was  said,  indeed,  might  be  corrected  even  after 
answer.^ 

[If  no  county  be  named  the  defendant  may  move  to  set  aside 
the  complaint  in  any  judicial  district  where  the  action  is  prop- 
erly triable ;  *  but,  where  the  summons  stated  that  the  complaint 
would  be  filed  in  the  ofiice  of  the  clerk  of  the  city  and  county  of 
New  York,  held,  New  York  was  sufiiciently  indicated  as  the  place 
where  the  defendant  was  required  to  make  the  motion.''] 

The  title,  it  seems,  must  set  forth  correctly  the  names  of  the 
parties  plaintiff  and  defendant.  Their  full  names,  both  Christian 
and  surname,  should  be  stated,  and  a  partnership  consisting  of 
several  persons  must  sue  or  be  sued  by  their  names  at 
[*205]  length,  and  not  *  in  the  name  of  the  firm.*  Thus,  A  B 
&  Co.  V.  C  D,  in  the  title  of  a  complaint,  would  be  bad,  unless, 
indeed,  it  was  cured  by  the  names  being  correctly  set  forth  in  full 
in  the  body  of  the  complaint,  within  the  decision  in  the  case' of 
Hill  V.  Thacter,  supra.  If  the  plaintiff  sue  or  the  defendant  is 
sued  in  a  particular  character,  it  should  be  expressed  in  the  title, 
as  A  B,  as  executor  of  the  last  will  and  testament  of  C  D,  deceased ; 

'  [Dorman  v.  Kellam,  14  How.  184, 4  ^  Merrill  v.  ^rinnell,'\Q  How.  Pr.  31. 

Abb.  202.]  6  Merrill  v.  Orinnell,  10  How.  Pr.  31. 

'  Ward  V.  Stringliam,  1  Code,  118.  ^  Hotchkiss  v.  Crocker,  15  How.  336. 

^  Van  Naviee  v.  People,  9  How.  Pr.  '  Damson  v.  Powell,  13  How.  287. 

198  ;  [  Van  Benthuysen,  v.  Stevens,  14  « 3  Caines,  170.     Tidd's  Pr.  447-» 

How.  70.]  636. 


156  TITLE   OF  THE   COMPLAI]N"T.  [CH.  IV. 

A  B,  as  committee  of  the  person  and  .estate  of  C  D,  a  lunatic, 
an  idiot,  an  habitual  drunkard ;  A  B,  as  president  of  the  Bank 
of ,  etc. 

[A  B,  as  assignee  for  the  benefit  of  the  creditors  of  C  D  ;  A  B, 
as  administrator  of  all  and  singular  the  goods,  chattels  and  credits 
which  were  of  C  D,  deceased ;  A  B,  an  infant,  by  C  D,  his  guard 

ian  ad  litem  ;    A  B,  as  sheriff  of  the  county  of ;   A  B,  as 

receiver  of  C  D ;  A  B,  as  receiver  of  the  A  bank ;  A  B,  as  over- 
seer of  the  poor  of  the  town  of ;  A  B,  as  supervisor  of  the 

town  of ;  the  board  of  supervisors  of  the  county  of . 

The  word  "  as  "  is  material,  and  cannot  be  replaced  by  any  other 

word.'] 
[*206]  *  "  If  the  process  describe  the  plaintiff  or  defendant  as  being 
executor,  administrator,  etc.,  the  plaintiff  may  declare  gen- 
erally in  his  own  right,  treating  the  description  as  a  mere  super- 
fluous addition,  just  as  if  the  word  '  cai'jpenter '  had  been  idly 
introduced." ' 

[If  the  summons  be  in  favor  of  A  B,  the  complaint  may  be  in 
favor  of  A  B,  in  a  representative  capacity,  for  that  only  narrows 
the  demand  which  the  defendant  was  called  upon  to  answer ; '  but, 
if  the  summons  be  in  favor  of  A  B,  "  as  "  executor,  etc.,  the  plain- 
tiff cannot  enlarge  the  capacity  in  which  he  sues,  and  the  plaintiff 
must  declare  in  the  capacity  described  in  the  summons.*] 

The  title  of  the  complaint  need  not,  in  certain  cases,  agree  with 
the  summons  in  the  numher  of  parties  defendant.  Thus,  it  is 
held,  in  Tra/vis  and  others  v.  Tobias  and  others^''  that  there  is 
nothing  in  the  Code  which  prevents  the  application  of  the  com- 
mon-law rule,  that,  where  the  writ  did  not  require  special  bail, 
several  persons  might  be  named  as  defendants,  and  the  plaintiff 
might  declare  and  proceed  against  any  one  of  them  separately,*  and 
it  was  accordingly  ruled  that  a  plaintiff  was  regular  in  delivering 
a  complaint  against  one  defendant  on  whom  process  was  served, 
omitting  the  names  of  others  mentioned  in  the  summons.  Of 
course  this  can  apply  only  to  cases  where  the  defendants  are  sev- 
erally liable  [and  does  not  apply  to  justices'  courts']. 

'  HensTiall  v.  Roberts,  5  East,  154.  »  7  How.  Pr.  90  [4  Denio,  2471. 

'  3Ierritt  v.  Seaman,  6  N.  T.  168.  «  16  Johns.  44,  3  id.  358,  4  Term  R. 

"  1  Chitty's  PL  250.  696. 

«  1  Chitty's  PI.  250.  '  6  Hill,  639. 


SEC.  I.]  THE   COMPLAINT.  157 

Bj  section  175,  when  the  plaintiff  shall  be  ignorant  of  the  name 
of  a  defendant,  such  defendant  may  be  designated  in  any  pleading 
or  proceeding,  by  any  name ;  and,  when  his  true  name  shall  be 
discovered,  the  pleading  or  proceeding  may  be  amended  accord- 
ingly. An  early  case  under  the  Code  {Pindar  v.  Blacky 
[*20'r]  shows  the  propriety  as  well  as  the  proper  *application  of 
the  rule.  The  defendant  in  the  action,  whose  real  name 
was  unknown  to  the  plaintiff,  but  who  was  in  command  of  the 
sloop  Hornet,  of  Troy  (the  action  being  brought  for  damages 
committed  by  the  sloop  on  her  passage  up  the  Hudson  river),  was 
sued  by  the  name  of  James  Black,  and  an  order  of  arrest  allowed. 
This  was  considered  regular.  The  plaintiff  being  ignorant  of  the 
defendant's  real  name,  remarks  the  court,  was  authorized  by  the  one 
hundred  and  seventy-fifth  section  to  designate  him  by  any  name,  in 
any  pleading  or  proceeding.  He  might  as  well  call  him  "  the  man  in 
command  of  the  sloop  Hornet^''  as  by  any  other  name  more  brief, 
but  less  distinctive.  In  the  case  of  Crandall  v.  Beach  and  John 
Doe^  Justice  Strong  decided  that  a  plaintiff  could  not  use  a  fic- 
titious name  at  his  discretion,  but  only  when  ignorant  of  the  true 
name  of  the  defendant ;  and,  that,  in  such  case,  where  the  contract 
is  a  joint  liability,  such  as  a  partnership  liability  or  the  like,  the 
plaintiff  could  not  recover  without  proving  on  the  trial  who  the 
other  joint  obligor  or  copartner  was,  and  showing  that  the  name 
used  in  the  pleadings  is  fictitious  [and  plaintiff  may  use  a  fic- 
titious family  and  also  given  name.'  When  a  party  is  known  by 
two  names,  one  as  well  as  the  other,  he  may  be  sued  by  either.* 
A  child,  not  yet  named,  may  be  sued  as  the  youngest  male  or 
female  child  of  its  father  and  mother,  naming  them.*]  A  vari- 
ance between  the  summons  and  complaint  in  the  name  of  the 
party  defendant  set  forth  in  the  title,  as  if  a  defendant  be  named 
in  the  summons  Isaiah  Hart,  and  in  the  complaint  Israel 
Hart ;  or  a  misnomer,  as  if  Isaac  Hart  be  sued  by  the  name  of 
Isaiah  Hart,  it  has  been  said,  may  be  takea  advantage  of  by 
motion  to  set  aside  the  summons  and  complaint.*     [The  notice 

1  4  How.  Pr.  95.  »  ^i^y  y.  BrougMon,  2  Sim.  &  Stu.  188, 
'  7  How.  Pr.  271  [Miller  v.  Stettiner,    1  Eng.  Ch.  Rep.  (Banks's  ed.) 

22  How.  518, 7  Bosw.  692,  11  How.  278].        *  Elliott  v.  Hart  and  others,  7  How 

2  Frank  v.  Levie,  5  Rob.  600.  Pr.  25. 
*  Eagleston  v.  Son,  5  Rob.  640. 


158  TITLE   OF   THE   COMPLAINT.  [CH.  IV. 

of  motion  should  not,  however,  be  signed  by  the  attorney  for  the 
defendant  generally,  but  only  for  the  purposes  of  the  motion.* 
But  the  better  doctrine  seems  to  be  that  the  misnomer  should  be 
pleaded  in  abatement,'']  But,  under  the  foregoing  pro- 
[*208]  vision  of  the  Code,  it  *would  seem  that  if  the  plaintiff 
were  ignorant  of  the  defendant's  christian  name,  he  might 
describe  him  by  a  fictitious  christian  name  in  the  title,  alleging 
that  fact  in  the  complaint,  and  that  the  case,  therefore,  would  not 
be  one  of  misnomer. 

In  all  these  cases  the  plaintiff  should  set  forth  such  a  descrip- 
tion of  the  person  of  the  defendant  as  he  is  able  to  give,  and 
should  show  particularly  his  interest  in,  and  connection  with,  the 
action. 

In  a  partition  suit,  if  any  of  the  parties  are  unknown,  the  stat- 
ute' authorizes  the  plaintiff  to  proceed  against  such  "owners 
unknown,"  and,  of  course,  their  names  need  not  be  set  out  in  the 
title.  [But  the  complaint  must  allege  that  there  are  certain 
unknown  owners  of  the  premises  in  question.*  The  Code  makes 
the  same  provision  in  foreclosure  cases.'] 

Must  agree  with  the  summons.  Under  the  old  sytem  the  dec- 
laration was  required  to  correspond  with  the  process  not  only  in 
the  names  of  the  parties,  the  number  of  the  parties  and  the  char- 
acter in  which  the  parties  sued,  but  also  in  some  cases  in  the 
cause  of  action.  The  rules  upon  that  subject,  however,  were 
technical,*  and  can  have  but  a  limited  application  to  the  system 
of  this  Code.  The  foregoing  cases  show  the  extent  to  which  the 
principle  has  been  considered  applicable  to  the  Code,  so  far  as 
regards  the  conformity  of  the  complaint  with  the  summons  in 
respect  to  the  parties.  As  to  the  conformity  between  the  sum- 
mons and  the  complaint  in  respect  to  the  cause  of  action,  a  spe- 
cific rule  is  laid  down  by  the  Code,  which  is  peculiar  in  itself, 
and  is  not  strictly  analogous  to  the  old  system.  Section  129  pro- 
vides that  the  plaintiff  shall  insert  in  his  summons  a  notice  in  sub- 
stance as  follows : 

1  Dole  V.  Manley,  11  How.  138 ;  Bav^  *  2  R.  S.  319,  §  12,  2  Edm.  St.  828 ; 
ter  V.  Arnold,  9  id.  445.  2  R.  S.  330,  ^  84,  2  Edm.  St.  340. 

*  Miller  v.  Stettincr,  22  How.  518,  7        *  Hyatt    v.    Pugsley,  23   Barb.  303; 
Bosw.  692  ;    Traver  v.  Eighth  Avenue    Bogers  v.  McLean,  Slid.  307 . 
R.  B.,  3  Keyes,  498,  6  Abb.  N.  S.  46.  '  Code,  §  135. 

«  See  1  Chitty's  PI.  278-285. 


SEC.  I.]  THE   COMPLAINT.  159 

{*209]  *  1st.  In  an  action  arising  on  contract  for  the  recovery 
of  money  only,  that  he  will  take  judgment  for  a  sum 
epecified  therein,  if  the  defendant  fail  to  answer  the  complaint 
within  twenty  days  after  the  service  of  the  summons. 

2d.  In  other  actions,  that  if  the  defendant  shall  fail  to  answer 
the  complaint  within  twenty  days  after  service  of  the  summons, 
the  plaintiff  will  apply  to  the  court  for  the  relief  demanded  in  the 
complaint. 

[The  complaint  must,  in  all  cases,  agree  with  the  notice  in  the 
summons  in  respect  to  the  classification  of  actions  specified  in  this 
section ;  otherwise  it  is  an  irregularity,  and  the  complaint  will  be 
set  aside,  provided  the  motion  be  made  at  the  earliest  opportunity,' 
before  answering,"  or  obtaining  an  extension  of  time  to  answer,* 
unless  the  order  extending  such  time  provide  that  it  shall  be  with- 
out prejudice  to  such  a  motion.*  But  such  a  motion  cannot  be 
made  until  the  summons  is  actually  served.^  A  general  appear- 
ance in  the  action  is  not  a  waiver  of  the  irregularity." 

There  is  some  conflict  in  the  authorities  as  to  the  form  of  the 
notice  to  be  used,  but  we  think  the  following  rules  may  be  safely 
followed : 

Cases  which  Fall  within  Subdivision  I. 

1.  Where  the  action  is  upon  a  contract  which,  hy  its  terms  or 
by  necessary  implication,  liquidates  or  detenmines  the  amount  of 
damages.'' 

2.  Where  the  amount  of  damages  can  be  ascertained  by  mere 
computation.* 

3.  Actions  for  penalties,  the  amounts  of  which  are  fixed  by 
statute,  in  consequence  of  which  the  law  implies  a  promise  to  pay 
that  sum.' 

4.  Actions  for  money  had  and  received,  notwithstanding  the 
complaint  contains  an  allegation  that  defendant  converted  it  to  his 

»  Tuttle  V.  Smith,  6  Abb.  329, 14  How.  »  Freeman  v.  Young,  3  Rob.  (\m. 

395 ;   Bidder  v.   Whitlock,  13  id.  208 ;  «  Tuttle  v.  Smith,  14  How.  ;]l)5,  6 

Bender  v.  Comstock,  4  Robertson,  644,  Abb.  329. 

and  authorities  cited.  ""  Flynn  v.  Hudson  River  Railroad,  6 

'  Willett  V.  Stewart,  43  Barb.  98.  How.  308 ;  Cemetery  Board  v.  Teller,  8 

'  Garrison  v.  Garr,  34  How.  187,  3  id.  504 ;  People  v.  Bennett,  6  Abb.  843. 

Abb.  N.  S.  266.  »  Id. 

*  4  Sandf.  660,  5  How.  44,  5  Sandf.  » People  v.  Bennett.  6  Abb.  343. 
657,  34  How.  238. 


160  TITLE   OF  THE   COMPLAINT.  [CH.  IV. 

own  use,*  for  such  an  allegation  is  immaterial,  and  the  plaintiff  is 
entitled  to  recover  without  proof  of  it.^ 

5.  Actions  upon  implied  contracts  to  pay  a  definite  sum  fixed 
bj  law,  as  upon  a  judgment.^ 

It  was  held  in  Champlin  v.  Dietz*  in  the  sixth  district,  where 
it  was  alleged,  in  the  complaint,  that  defendant  agreed  to  pay 
plaintiff  for  his  services  so  much  as  they  were  reasonably  worth, 
the  summons  should  conform  to  subdivision  one.  No  opinion  is 
reported,  and  we  think  the  decision  is  in  conflict  with  the  prin- 
ciple laid  down  in  many  of  the  authorities,  and  the  spirit  of  the 
Code. 

In  such  a  case  the  value  is  mere  matter  of  opinion,  and  the 
plaintiff  may  state  it  at  any  sum  he  pleases.  By  comparing  the 
first  subdivision  of  section  129  with  the  first  of  section  246,  it 
will  be  seen  that  the  language,  so  far  as  the  point  under  consider- 
ation is  concerned,  is  identical,  and  that  the  plaintiff  would  be  at 
liberty  to  enter  judgment  for  the  amount  to  which,  according  to 
his  estimate,  he  is  entitled.  The  defendant  is  powerless.  He 
cannot  answer,  for  his  defense  goes  to  the  question  of  damages 
merely,^  and,  if  he  could,  plaintiff  should  not  be  at  liberty  to  put 
him  to  the  trouble  and  expense  of  interposing  a  defense.  If  the 
defendant  appear  without  answering,  the  plaintiff  is  not  obliged 
to  assess  his  damages,  but  may  enter  judgment  for  the  amount 
claimed.*  It  is  only  where  the  plaintiff  designs  to  apply  to  the 
"  court "  for  the  "  relief  demanded,^''  that  he  is  compelled  to  give 
defendant  notice  of  the  application  where  there  has  been  an  ap- 
pearance.'' 

The  case  of  Mason  v.  Hand^  in  the  same  district,  seems  to 
have  gone  upon  the  ground  that  both  counts  were  upon  the  same 
cause  of  action,  and,  as  the  first  was  upon  a  contract  to  pay  the 
amount  claimed  in  the  summons,  the  second  count  was  super- 
fluous, and  did  not  render  the  complaint  a  departure  from  the 
summons.  The  reasoning  of  the  cases  in  the  sixth  district,  we 
think,  went  further  than  the  spirit  of  the  Code  justified,  and  we 
have  no  doubt  that  the  courts  will  gradually  settle  down  upon 

1  Oof  V.  Edgerton,  18  Abb.  381.  *  Gilbert  v.  Rounds,  14  How.  46. 
»  Connoughty  v.  Nichols,  42  N.  Y.  83.  «  Code,  g  246,  subd.  1. 

2  People  V.  Bennett,  6  Abb.  343.  ■>  Code,  §  246,  subd.  2. 
<  87  How.  214.  8 1  Lans.  66. 


SEC.  11.]  THE   COMPLAINT.  161 

some  simple  rule,  by  means  of  which  the  practitioner  can  easily 
determine  how  to  frame  his  summons. 

Cases  under  Subdivision  II. 

1.  Actions  for  a  breach  of  contract,  where  the  damages  are  not 
liquidated,  or  cannot  be  made  certain  by  mere  computation.^ 

2.  When  the  gravamen  of  the  action  is  a  tort.^ 

3.  When  the  action  is  upon  a  bond  with  a  penalty.' 

4.  An  equitable  action,*  as  against  an  attorney  for  an  account 
of  moneys  collected  by  him.* 

5.  All  actions  not  clearly  within  subdivision  one,  as  above  enum- 
erated. 

If  the  summons  conform  to  subdivision  tM'o,  the  plaintiff  may 
declare  for  any  cause  of  action,  and  the  court  will  not  set  aside  the 
complaint,  although  it  demand  judgment  for  a  specific  sum  of 
money,'  especially  if  the  complaint  accompany  the  summons.''  • 

Where  two  causes  of  action  are  properly  joined,  one  of  which 
requires  a  notice  under  subdivision  one  and  the  other  under  sub- 
division two,  the  summons  should  conform  to  the  latter.* 

In  all  cases  of  doubt  it  will  be  safer  to  use  a  summons  for 
'relief,"  and,  if  possible,  serve  the  complaint  with  it. 


[*213]  *  SECTION  II. 

THE   STATEMENT    OF  PACTS. 

The  original  Code  provided  that  the  complaint  should  contain : 

A  statement  of  the  facts  constituting  the  cause  of  action,  in  ordin- 
ary and  concise  language,  without  repetition,  and  in  such  a  manner 
as  to  enable  a  person  of  conimun  understanding  to  know  what  is 
intended.* 

^Cemetery  Board  v.  Teller,  8  How.  ^  Mayor  v.  Lyons,  1  Daly,  296,  300; 

504 ;  Tattle  v.  Smith,  6  Abb.  82!),  14  Salters  v.  Ralph,  15  Abb.  278. 

How.  895  ;  Cobb  v.  DunMn,  19  id.  164,  *  Shafer  v.  Humphrey,  15  How.  564; 

reversina:  S.  C,  17  id.  97 ;  Norton  v.  Hempen  v.  Becker,  29  id.  385. 

Gary,  28  id.  469;  Salters  v.  Ralph,  15  ^  West  v.   Brewster,  11  N.  Y.  Leg. 

Abb.  273;  Hemson  v.  Decker,  29  How.  Obs.  157,  1  Duer,  647. 

385;  Garrison  v.  Carr,  34  id.  187.  UTemsen  v.  D'cker,  29  How.  385. 

'  We:<t  V.  JJrevster,  1  Dner,  647 ;  Waters  '  Brown  v.  Eaton,  37  How.  325. 

V.  Whitteinore,22Ba.rh.59o,  correcting  ^Norton  v.   Gary,  23  How.  469,  14 

opinion  of  CRiprEN,  J.,  13  Barb.  634.  Abb.  364. 

»  ^  120  Original  Code,  subd.  2. 

21 


162  STATEMENT   OF   FACTS.  [CII.  IV. 

As  ameiided  in  1851,  it  is  as  follows : 

A  plain  and  concise  statement  of  the  facts  constituting  a  cause  of 
action  without  unnecessary  repetition.' 

It  will  be  seen  at  a  glance  that  the  amendment  does  not  sub- 
stantially alter  the  section  as  it  originally  stood.  The  decisions, 
therefore,  that  have  been  made  nnder  the  original  Code  are  equally 
applicable  to  the  Code  as  thus  amended. 

A  careful  consideration  of  this  imp^ortant  branch  of  the  subject 
will  render  it  necessary  to  enter  into  a  full  and  perhaps  minute 
examination  (even  at  the  risk  of  repeating  a  portion  of  what  has 
already  been  said)''  of  the  cases  that  have  been  decided  and  reported 
since  the  Code,  in  order  to  ascertain  what  is  a  sufficient  statement 
of  '■''facts  constituting  a  cause  of  action •'  within  the  meaning  of 
the  Code,  and  what  are  the  principles  and  rules  which  govern  such 

statement. 
[*214]     *It  has  been  observed  that  the  old  declaration  at  law  was 
but  a  mere  statement  of  facts  "  constituting  the  plaintiff's 
cause  of  action,  in  inetliodical  and  legal  formP 

So,  too,  the  bill  in  equity  was  a  statement  "  in  due  legal  form 
of  the  facts  of  the  case  on  which  the  plaintiff  founded  his  title  to 
relief,  or  to  some  equitable  interposition  or  ail  from  the  court."  * 
The  plaintiff  was  required  to  state  whatever  was  essential  to  his 
right  to  recover,  and  was  necessarily  within  his  knowledge,  and  to 
state  it  positively  aud  with  precision,  but  the  matter  ^^•as  not  re- 
quired to  be  set  out  with  that  decisive  and  categorical  certainty 
which  was  necessary  in  an  action  at  law.*  The  reader  is  referred 
to  a  previous  section  of  this  work  which  treats  of  the  rules  to 
determine  the  sufficiency  of  pleadings  under  the  Code,'  in  which 
it  was  attempted  to  be  shown  that  no  part  of  the  chancery  system 
is  retained  except  what  was  technically  called  the  stating  jpart  of 
the  bill,  and  that  there  never  was,  in  reality,  any  essential  differ- 
ence in  the  mode  of  setting  forth  the  facts  in  the  stating  part 
of  an  equity  bill,  and  in  a  declaration  at  law.  The  Code  then,  it 
seems,  dispensing  with  the  method  and  the  fonn,  retains  the  sub- 
Btance,  both  of  the  old  common-law  declaration  and  of  the  stating 

'  §  142  Code,  subd.  2.  <  Story's  Eq.  PL  236,  Mitf.  Eq.  PI.  41. 

2  Ante,  i^j^  iii  and  iv,  chap.  1.  *  Ante,  chap,  i,  §  iv 

3  Story's  Eq.  PL,  ii  7,  34,  Coop.  Eq. 
PI.  6. 


SEC.  II. J  THE   COMPLAIlsrT.  163 

part  of  the  bill  in  equity.  "  The  pleader  may  use  his  own 
language,  but  the  necessary  matter  must  be  there  and  be  stated 
in  an  intelligible  and  issuable  fonn,  capable  of  trials ' 
[*215]  *  Or,  as  the  rule  is  stated  in  another  ease :  "  The  principles 
of  pleading,  whatever  the  system,  are  always  the  same. 
Its  office  is  to  present  a  cause  of  action  on  the  one  side  and  a 
defense  on  the  other.  This  is  not  less  true,  under  our  present 
system,  than  it  was  under  the  former.  Names  are  changed,  use- 
less forms  and  technical  rules  are  abolished,  but  the  principles 
remain  unchanged." "  These  established  principles  of  pleading, 
as  applicable  to  the  statement  by  the  plaintiff,  of  the  facts  consti- 
tuting his  cause  of  action,  it  will  now  be  our  object  to  consider, 
and,  in  doing  so,  I  shall  examine  them  under  the  following  gen- 
eral heads : 

First.  What  matter  must  be  alleged  in  the  complaint. 

Second.  "What  must  not  be  alleged. 

Third.  What  need  not  be  alleged. 

Fourth.  How  the  fact  must  be  stated. 

And  first :  Wliat  matters  must  be  alleged  in  the  complaint.  — 
The  complaint  must  contain,  generally,  all  the  facts  which,  upon 
a  general  denial,  the  p)l(^ii^tiff  will  be  bound  to  prove  in  the  first 
instance,  to  protect  himself  from  a  nonsuit,  and  show  himself 
e7ititled  to  a  judgment.^  Every  fact  is  to  be  deemed  constitutive 
which  is  necessary  to  maintain  the  action,  which  the  defendant 
has  a  right  to  controvert,*  or  which,  if  the  cause  of  action 
[^216]  be  not  denied,  will  enable  the  *court  to  grant  the  relief 
sought.'  Or,  as  the  general  rifle  is  stated  in  another  case,* 
the  "  complaint  must  set  forth  all  the  material  and  issuable  facts 
which  are  relied  on  as  establishing  the  plaintiif 's  right  of  action." 
And  again,  it  must  be  so  framed  "  as  to  raise  upon  its  face  the 
question  whether,  admitting  the  facts  stated  to  be  true,  the  plain- 
tiff or  defendant  is  entitled  to  judgment,  instead  of  leaving  that 
question  to  be  raised  and  determined  upon  the  trial." 

^Boyce  v.  Brown,  7  Barb.  S.  C.  81,  Sandf.  437,  4  id.  665,  4  How.  Pr.  98,  5 

per  Hand,  J.  id.  390,  7  L.  O.   149,  id.  315,  1  C.  R. 

'^  Buddington  v.  Davis,  6  How.  Pr.  102,  2  id.  59,  o  id.  64,  5  Sandf.  564,  1 

401,  per  Harris,  J.  Duer,  707,  2  id.  670. 

*  The  following  authorities  are  cited  *  Oarvey  v.  Fowler,  4  Sandf.  667. 

In   support   of   this   proposition,   and  ^  Tallman  v.  Oreen,  3  Sandf.  437. 

others  will  be  referred  to  in  the  course  *  Mann  v.  Morewood,  5  Sandf.  558. 
«f  this  chapter:  9  Barb.  S.  C.  158,  3 


164  STATEMENT   OF   FACTS.  [CH.  IV. 

This  general  rule  is,  of  course,  applicable  to  every  description 
of  pleading  under  the  Code  —  that  which  has  heretofore  Leen  de- 
nominated equitable  as  well  as  legal.  It  will,  perhaps,  be  best 
illustrated  by  considering  it  in  its  application  to  j)articular  classes 
of  actions,  as  established  on  principle  and  authority  both  before 
and  since  the  Code.  In  doing  so  I  shall  examine  the  subject  par- 
ticularly with  reference  to  those  actions  which  were  heretofore 
known  as  of  common-law  origin.     And  first : 

Actions  on  contract.  —  A  consideration  is  an  essential  element 
in  every  valid  contract.  Without  some  good  or  valuable  consid- 
eration, an  agreement  is  a  mere  nudum  factum^  and  void.  Hence 
one  of  the  most  obvious  and  important  rules  in  pleading  a  con- 
tract was  that  the  consideration  must  be  set  forth,  because  proof 
of  a  consideration  was  absolutely  necessary  to  establish  the  validity 
of  the  claim. 

There  was  no  better  settled  rule  of  pleading  than  tliat 
[*21T]  the  complaint  on  a  contract  must  show  a  *  consideration. 
The  consideration  must  either  appear  impliedly  from  the 
instrument  itself,  as  a  promissory  note  or  bill  of  exchange,  or  tlie 
complaint  must  expressly  state  the  particular  consideration  on 
which  the  contract  is  founded.  And  it  is  essential  that  the  con- 
sideration stated  should  be  legally  sufficient  to  support  the  promise 
for  the  breach  of  which  the  action  is  brought.  This  principle  is 
supported  by  numerous  authorities  in  our  own  and  other  States.' 
A  complaint  against  defendant  for  not  performing  certain  work 
according  to  contract,  without  showing  that  he  was  to  have  any 
thing  for  his  work,  contains  no  cause  of  action,  and  is  bad,  because 
the  undertaking  is  not  shown  to  be  upon  any  consideration  what- 
ever, which  is  an  essential  fact  necessary  to  support  an  action  on 
contract.  This  was  so  held  under  the  Code  in  Bristol  v.  Rensse- 
laer and  Saratoga  R.  R.  Co.^  in  which  the  plaintifl'  comphiined 
against  the  defendants,  as  common  carriers,  for  non-delivery  of 
goods,  without  alleging  that  they  did,  or  were  to,  receive  any 
compensation  for  carrying  the  goods,  and  the  agreement,  there- 
fore, it  was  said,  was  to  be  regarded  as  made  without  consideration. 
[So  in  an  action  on  an  order,  not  negotiable,  the  complaint  must 

1  See  cases  cited  in  note  2,  p.  292  of  « 9  Barb.  S.  C.  158,  Gen.  Term,  4tb 
1  CLitty's  PI.  (9th  Am.  ed.)  district. 


SEC.  11.  J  THE   COMPLAIISrT.  165 

allege  that  the  acceptance  was  for  a  good  and  valid  consider- 
ation.'] 

The  complaint  must  show  a  consideration  whenever  proof  of  it 

is  necessary  to  support  the  action  \^  and  if  such  consideration  he 

not  set  forth,  it  cannot  be  proved,  and  the  action  will  fail.'    Mutual 

promises  must  be  stated  to  have  been  made  at  the  same 

[""218]  time.     That  in  consideration  of  the  plaintiff's  *  promise 

the  defendant  "  afterward  promised,"  etc.,  is  bad.* 

The  consideration  stated  must  be  legall}^  siijjicient.  If  it  be 
frivolous,  or  void,  or  illegal,  the  complaint  will  be  bad  on  demur- 
rer, as  not  stating  facts  suthcient  to  constitute  a  cause  of  action. 
A  mere  moral  obligation,  as  we  shall  presently  notice  more  at 
large,  will  sustain  a  promise,  and  such  a  consideration  appearing 
in  the  complaint  will  be  sufficient. 

Under  the  old  system  the  whole  of  the  consideration  must  be 
stated,  otherwise  it  would  be  a  fatal  variance  at  the  trial.  But 
where  part  of  the  consideration  was  frivolous  or  insufficient,  viz., 
such  as  if  it  stood  alone  would  not  support  an  assum.psit^  that 
part  need  not  be  stated;  or  if  stated,  it  would  not  vitiate  the 
pleading  if  the  residue  was  good.^  And  where  an  action  was 
brought  on  an  agreement  containing  a  variety  of  stipulations  on 
both  sides,  it  was  not  necessary  or  proper  to  set  out  the  whole. 
It  was  sufficient  to  state  so  much  of  any  contract,  consisting  of 
several  distinct  parts  and  collateral  provisions,  as  contained  the 
entire  consideration  for  the  act,  and  the  entire  act  which  is  to  be 
done  in  virtue  of  such  consideration."  I  suppose  that  the  strict 
common-law  rule  which  regarded  the  variance  as  fatal,  if  it  ap- 
peared on  the  trial  that  the  whole  consideration  was  not  set  forth, 
would  not  be  rigorously  applied  under  the  Code,  and  the  liberal 

system  of  amendments  which  it  allows. 
[*219]  *  The  consideration  of  a  contract,  in  the  language  of 
pleading,  is  either  executed  or  executory^  that  is  to  say, 
something  already  done  or  to  he  done  by  the  plaintiff.  It  is  not, 
and  never  was,  as  a  general  rule,  necessary  to  state  an  executed 
consideration  with  so  much  precision  as  an  executory  one,  with 

'  [RicMrdson  v.  Carpenter,  2  Sweeny,  *  1  Caines,  583,  12  Johns.  299. 

3G().]  5  Saudf.  PI.  and  Ev.,  and  cases  <  i-^  I, 

■'  4  .Johns.  280.  vol.  1,  pp.  187  to  189. 

2  9  Barb.  S.  C.  158.  «  Id. 


166  STATEMENT   OF   FACTS.  [CH.  IV. 

reference  to  time  and  place,  nor  as  to  quantity,  quality  or  value. 
It  was  necessary,  however,  to  allege  that  the  executed  considera- 
tion arose  at  the  defendant's  request,  though  such  request  might 
in  some  cases  be  implied  in  evidence.  And  in  stating  a  con- 
sideration as  executory^  the  plaintiff  was  required  to  aver  a  per- 
formance before  action,  or  a  readiness  and  willingness  to  perform.' 
These  rules,  I  suppose,  are  mostly  formal,  and,  though  they  may 
be  propei'ly  observed  under  our  new  system,  their  application  is, 
perhaps,  not  indispensable  to  a  good  and  valid  pleading  under  the 
Code.  If  the  pleading  set  forth  substantially  a  good  or  valuable 
consideration,  or  the  facts  from  which  such  consideration  is  implied 
in  law,  and  which,  if  proved  in  evidence,  will  establish  as  a  legal 
conclusion  the  fact  of  a  sufficient  consideration  to  sustain  the 
promise,  it  will  be  sufficient. 

And  hence  results  another  principle  which  was  recognized  to 
some  extent,  even  under  the  old  system,  and  which  has  a  very 
decided  place  under  the  Code.  There  are  a  variety  of  contracts, 
mostly  sealed  written  instruments  or  promissory  notes,  bills  of 

exchange  and  the  like,  in  which  no  consideration,  inde- 
[*220]  pendent  of  the  contract,  need  be  proved,  and  *therefore 

none  need  be  alleged  in  the  pleading.  This  is  neither  a 
violation  of,  nor  an  exception  to,  the  general  rule  that  the  plead- 
ing, in  an  action  on  contract,  must  show  a  sufficient  consideration. 
For  a  negotiable  promissory  note,  or  bill  of  exchange,  of  itself 
imports  a  consideration.  So,  also,  does  a  seal  on  a  written  instru- 
ment, such  as  a  bond  for  the  payment  of  money,  a  deed,  etc.  In 
declaring  upon  these  written  instruments  and  liabilities,  therefore, 
the  mere  statement  of  the  liability  which  constitutes,  or  descrip- 
tion of  the  instrument  which  imports,  the  consideration  is  suffi- 
cient. No  consideration  need  be  proved  on  trial,  and  none,  there- 
fore, need  be  alleged  in  the  complaint.  This  doctrine  is  supported 
by  numerous  authorities,"  and  is  so  held  under  the  Code.'  But 
if  the  instrument,  on  its  face,  do  not  disclose  a  consideration,  then 
a  consideration  must  be  averred  and  proved,*  as  in  complaining 
on  a  note  not  within  the  statute,  and  not  expressing  for  value 

'  1   Saund.  PL  and  Ev.,  and   cases  ^  7  l.  O.  149. 

cited,  pp.  190, 191.  "  2  McCord,  218;  [People  v.  SMll.  9 

'  See  cases  in  1  Cliitty's  PL,  note  1,  Cow,  778.] 
p.  293. 


SEC.  II.]  THE   COMPLAINT.  167 

received ;  but  it  is  sufficient  to  state  that  it    ,  ..:.■-  given  for  value 
received,  without  averring  a  special  consideration.'     Though  it 
was  held,  that  if  the  plaintiff  undertook  to  set  forth  the  consider- 
ation specially,  he  was  bound  to  prove  it  as  laid,"  this  is  now, 
doubtless,  otherwise  under  the  system  of  amendments  allowed  by 
the  Code.     Such  a  variance,  unless  proved  actually  to  have  "mis- 
led "  the  opposite  party,  would  be  disregarded  on  the  trial.' 
[•^221]       *  It  is  held  to  be  sufficient  in  a  complaint  to  allege  that 
on  a  certain  day  and  at  a  certain  place  the  defendant,  by 
his  promissory  note  in  writing,  for  value  received,  promised  to 
pay  the  plaintiff,  or  bearer,  a  specified  sum  ;  that  he  has  not  paid 
the  same,  and  is  indebted  to  the  plaintiff  therefor,  although  there 
is  no  allegation  that  the  defendant  delivered  the  note,  when  it  was 
payable,  whether  due  or  not,  or  that  the  plaintiff"  was  the  holder 
and  owner  thereof.*     The  words,  "  for  value  received,"  import  a 
consideration  as  between  the  indorser  and  indorsee,  and,  in  a  com- 
plaint thereon,  the  complainant,  who  alleges  himself  to  be  the 
lawful  holder,  need  not  aver  or  prove  a  consideration.^ 

Upon  similar  principles  a  complaint  on  a  sealed  instrument 
need  not  aver  a  consideration,"  because  a  consideration  need  not, 
in  the  first  instance,  be  proved.  It  is  sufficient  to  say  that  the 
defendant  executed  and  delivered  such  an  instrument  under  his 
hand  and  seal,  to  the  plaintiff",  without  averring  or  proving  a  con- 
sideration. 

And,  doubtless,  the  general  and  universal  rule  is  that  no  con- 
sideration need  be  expressly  alleged  in  the  pleadings,  unless  such 
consideration  must  be  proved  on  the  trial  to  sustain  the  action ; 
and,  where  the  instrument  or  contract  itself  imports  the  consid- 
eration, or  it  results  from  the  facts  set  forth  in  the  pleading,  by 
necessary  implication^  as  a  conclusion  of  law,  in  such  cases  tho 
pleading  will  be  sufficient  under  the  Code,  without  a  special  aver- 
ment of  consideration.' 

[If  an  agreement  state  a  nominal  consideration,  it  cannot  be 
defeated  by  proof  that  it  was  not  in  fact  paid.  The  omission  to 
pay  it  does  not  show  a  want  of  consideration,  nor  will  proof  that 

'  7  Johns.  311,  10  id.  418.  » 1  Code,  119. 

''  Id.  6  4  Johns.  416. 

^  See  post,  chap,  ix,  3  2.  '  {Douglass  v.   Hoioland,  24  Wend, 

<  6  Barb.  S.  C.  7G2.  35.] 


168  STATEMENT   OF   FACTS.  [CH.  IV. 

it  was  not  paid  entitle  the  defendant  to  a  verdict.'  The  recital 
of  the  payment  of  a  consideration  estops  the  party  from  denying 
it,  for  the  purpose  of  destroying  the  effect  or  operation  of  the 
instrument,  but  not  for  the  purpose  of  recovering  the  considera- 
tion money.''  Tlie  surrender  of  a  paper  wrongfully  obtained  and 
held,  which  a  court  of  equity  would  order  delivered  up,  furnishes 
no  consideration ;'  but  the  compromise  of  a  disputed  claim,  made 
honafide,  does ;'  otherwise  of  a  claim  which  a  party  hioius  to  be  un- 
founded, for,  in  such  case,  his  conduct  is  fraudulent.^  The  words, 
"  for  value  received,"  are  sufficient,7>rm(2/b!cm,  to  show  a  good  con- 
sideration ;'  but  the  word  "  agree"  does  not,  of  itself,  furnish  one;' 
nor  does  the  assumption  of  a  mere  ideal,  but  not  a  legal,  liability ;' 
otherwise  as  to  assuming  a  liability,  however  inadequate,  at  de- 
fendant's request ;'  nor  is  a  promise  by  a  debtor  to  pay  the  cred- 
itor's expenses  in  coming  to  see  him  valid ;'"  otherwise  if  the  journey 
were  undertaken  on  the  debtor's  promise  to  pay  such  expenses  ;" 
or  a  reasonable  charge  for  expenses  in  making  a  journey  to  ex- 
amine property,  prior  to  making  a  loan  thereon  ;"  or  a  reasonable 
charge  for  trouble  and  expense  in  procuring  money  to  loan."  A 
promise  to  forbear  prosecution  of  an  unfounded  claim  is  without 
consideration,  provided  it  be  conclusively  shown  that  the  suit, 
which  was  the  foundation  of  the  promise,  could  not  have  been 
prosecuted  to  effect ;"  so  the  transfer  of  an  instrument  void  by 
the  statute  of  frauds;'^  or  a  promise  to  pay  for  being  recanted 

1  Cliilds  V.   Bnrnum,  11  Barb.   14 ;        «  (7^5^,^  v_  Easkins,  3  Pick.  83,  93. 
Walcott  V.  Uorudds,  2  Rob.  630;  Ring        »  Small  v.  Ludlow,!  Hilt.  189. 

V.  Steele,  3  TnuiH.  App.  46.  '»  Bean  v.  Jones,  8  N.  H.  149  ;  WU- 

■■'  Grout   V.    Tt'irnsend,  2   Hill,  557 ;  Kams  v.   Hancer,  7  Paige,  581.     (See 

Goit  V.  Hat.   I* rot.  Ins.  Co.,  25  Barb.  Moak's  note  to   Clarke's   Cli.   31,  ed. 

190;    Grecnuhiilt    v.    Davis,    4    Hill,  1869.) 

643.  ' '  llarcKr  v.  McCidlough,  2  Denio,  119 ; 

2  Crosby  v.  Wood,  6  N.  Y.  369.  Uine  v."  Handy,  1  Johns.  Cli.  6  ;  ap- 
*  Gallisher  v.  Bischoffsheim,  L.  R.,  5  proved,  21  Barb.  188.  (See  Moak's  note 

Q.  B.  449.  to  Clarke's  Cb.  31,  ed.  1869.) 

6  Gallisher  v.  BiscTwffsJieim,  L.  R.,  5         ''^  Lynde  v.  Stnats,  1  N.  Y.  Leg.  Obs. 

Q.  B.  452.  89.     (See  Moak's  note  to  Clarke's  Ch. 

'«  Eastern  Plank  Road  Co.  v.  Vangli-  31,  ed.  1869.) 

an,  14  N.  Y.  516  ;  Jackson  v.  Alexan         '^  Eaton  v.  Alger,  2  Keyes,  41  ;  Ket- 

der,  3  Johns.  484  ;  Watson  v.  McLaren,  cTium  v.  Barber,  4  Hill,  224  ;  Storer  v. 

19  Wend.  557:   affirmed,  26  id.  425;  C'o«,  2  Bosw.  661.     (See  Moak's  note  to 

Douglass    v.     Iluirland,    24    id.     35;  Clarke's  Ch,  31,  ed.  1869.) 

Miller  V.  Cook,  23  N.  Y.  495  ;  The  Con-        '■»  Gonld  v.  Arinstrong,  2  Hall,  266. 

nectieut,  etc.,  V.  The  Cleveland,  etc.,  41        ^^  Ehle    v.    Judson,    24   Wend.   97; 

Barb.  9.  Combs  v.  Bateman,  10  Barb.  573 ;  Van 

'  Newcomb  v.  Clark,  1  Denio,  226 ;  Allen  v.  Jones,  10  Boaw.  369. 

Knox.  V.  Xutt,  1  Daly,  213. 


SEC.  II.]  THE   COMPLAINT.  169 

from  a  bargain  void  bj  the  statute  of  frauds  ;*  otherwise,  prob- 
ably, where  a  specific  performance  could  have  been  enforced  in 
equity  '.^  nor  is  a  note,  given  to  secure  a  precedent  debt  of  another, 
valid,  unless  tliere  be  an  agreement  of  forbearance  on  the  part  of 
the  payee ;'  or  it  be  signed  in  consequence  of  an  agreement  at  the 
time  of  making  that  such  signature  should  be  procured  if  request- 
ed.* A  promise  to  keep  money  already  due  until  a  certain  time, 
and  to  pay  interest  thereon,  is  without  consideration  ;^  but  a 
promise  to  forbear,  in  consideration  of  a,  new  security,  is  valid.' 
In  order  to  induce  his  debtor  to  secure  the  debt,  by  mortgage  on 
his  own  real  estate,  the  creditor  deducted  $50.  After  the  amount 
secured  became  due,  the  creditor  forebore  pressing  for  payment 
on  receiving  a  note  for  the  $50  and  interest.  The  latter  note  was 
held  valid,  on  the  ground  that  securing  a  debt,  by  the  debtor's 
own  property,  is  no  satisfaction  and  not  a  good  consideration  ;'  but 
such  an  agreement  for  security,  if  secured  by  any  thing  belonging 
to  a  third  person,  would  have  been  upheld.*  Where  plaintili",  by 
mistake,  paid  defendant's  tax,  which  defendant  promised  to  repay, 
it  was  held  a  valid  promise."  If  an  assignee  of  a  lease  assign  it 
and  take  an  agreement  for  the  payment  to  himself  of  the  rent,  it 
is  without  consideration,  for  the  last  assignee  becomes  liable  to 
the  landlord.'"  Otherwise  of  a  contract  to  a  lessor  to  pay  rent  to 
the  landlord,  for  he  is  liable  to  the  landlord  upon  his  covenants  in 
the  lease."  Where  the  holder  of  a  mortgage  assigned  it,  and 
afterward  took  from  the  mortffao-or  his  note  for  interest  in  arrear 
at  the  time  of  the  assignment,  held,  the  note  was  void,  unless  the 
payee  shoM^ed  that  the  amount  of  it  had  been  applied  upon  the 
mortgage  debt.'*     An  agreement  to  pay  heirs  a  certain  sum,  if 

^  Silver )iail  v.   Cole,  12  Barb.  685  ;  34  N.  J.  Law.  346 ;  Sawyer  v.  Fernold, 

Van  Allen  v.   Jones,   10   Bosw.  369 ;  59  Maine,  500. 
Lawrence  v.  Smith,  27  How.  327.  ■*  McNaugM  v.  MeCloughry,  42  N.  Y. 

^  Lawrence  v.  Smith,  27  How.  334 ;  22  ;  Farnsworth  v.  Clark,  44  Barb.  601. 
Witheck  v.  Witbeck,  9  Cow.  266  ;  Thorpe        ^  Kellogg  v.  Olmstead,  25  N.  Y.  189, 

V.  'Thorpe,  1  Salk.  171,  12  Mod.  455.  28  Barb.  96  ;  Reynolds  v.  Ward,  5  Wend. 

»  Commercial    Bank    v.    Norton,    1  502,  19  id.  389,  5  Duer,  202. 
Hill,  501;    Furmworth  v.    Clark,    44        ^  IVaders' Bank  v.  Bradner,  43  B&ih. 

Barb.  602  ;  1  Pars.  Cont.  (5tli  ed.)  444,  379. 

note  11 ;  Deacon  v.    Gridley,  15  0.  B.         '  Platts  v.  Walrath,  Lalor's  Sup.  to 

(80  Eng.  C.  L.  Rep.)  295,  28  Eng.  Law  Hill  &  Denio,  59. 
and  Eq.  345  ;  Russell  v.  Buck.  11  Vt.        »  Feeler  v.  Salisbury,  27  Barb.  485. 
106  ;  Courtney  v.  Doyle,  10  Allen,  122  ;        »  Mxon  v.  Jenkins,  1  Hilt.  318. 
Oreen  v.  Shepherd,  5  id.  589  ;  Jackson        '"  Stoppani  v.  Richard,  1  Hilt.  509, 
V.  Jackson,  7  Ala.  791 ;  Beebe  v.  Moore,        "  Jackson  v.  Port,  17  Johns.  479. 
3  McLean,  387  ;  Hockeniury  v.  Meyers,        ^^  Gillett  v.  Campbell,  1  Denio,  520. 
22 


170  STATEMENT   OF   FACTS.  [CH,  IV. 

they  will  not  oppose  the  probate  of  a  will,  is  valid/  A  com- 
plaint, to  recover  a  sum  agreed  to  be  paid  upon  compromise, 
should  allege  specifically  that  there  was  some  doubt  or  dispute  as 
to  the  validity  of  the  claim,  or,  if  a  judgment  as  to  its  regularity 
or  va.idity,  upon  which  the  defendants  might  have  founded  a  pro- 
ceeding to  vacate  or  reverse  it.*j 
[*222]  *  Other  averments  in  actions  on  contract,  and  herein 
of  notes  and  other  written  instruments.  —  The  defendant's 
contract,  the  breach  of  which  is  complained  of,  must  be  positively 
and  distinctly  alleged.  The  plaintiff  can  recover  only  upon  the 
promise  alleged ;  therefore,  if  that  be  bad  or  insufficient  in  law, 
the  court  cannot  give  judgment  for  him.  If  the  promise  or 
engagement  contained  aij  exception  or  proviso,  which  qualified 
the  defendant's  liability,  the  complaint  at  common  law  was  required 
to  notice  the  exception,  or  there  was  a  fatal  mis-statement.  As  where 
a  declaration  averred  that  the  defendant  had  warranted  a  horse  to  be 
sound,  and  the  warranty  was  subject  to  the  exception  of  a  kick  in  the 
les:.'  Or  where  the  declaration  stated  that  defendant  had  under- 
taken  to  carry  and  deliver  goods  safely,  and  the  contract  proved 
was  subject  to  the  exception  of  fire  and  robbery.*  But  no  more 
of  the  contract  was  required  to  be  stated  than  was  broken,  as, 
"where  the  contract  consisted  of  several  distinct  parts  and  collateral 
provisions,  it  was  sufficient  to  state  so  much  of  it  as  constituted 
that  contract,  the  breach  of  which  was  complained  of,  and  which 
prescribed  the  duty  to  be  performed,  and  the  time,  manner  and 
other  circumstances  of  its  performance.' 

The  complaint  should  in  general  contain  all  such  averments  as 
are  necessary  to  show  a  complete  cause  of  action.  If,  for  example, 
defendant's  contract  be  to  do  an  act  at  the  expiration  of  a  given 
time,  or  the  happening  of  a  certain  event,  it  must  be  aver- 
[*223]  red  that  the  time  has  expired,  or  that  the  event  ^happened 
before  the  commencement  of  the  suit ;  or,  if  the  act  to  be 
done  were  such  as  required  time  [as  to  pay  when  convenient],'  and 
no  specified  time  were  agreed  on,  it  nnist  be  averred  that  a  reason- 
able time  had  elapsed.      In  regard  to  bills  of  exchange  and  prom- 

«  Palmer  v.  North,  35  Barb.  283.  » 1  Saund.  PI.  and  Ev.  197-200. 

«  Bolcher  v.  Frey,  37  Barb.  152.  « 18  Ohio  State  Rep.  88. 

»  2  B.  &  C.  20.  ''  1  Saund.  PI.  and  Ev.  201,  202,  and 

*  4  B.  &  C.  446,  4  Camp.  20.  cases  there  cited. 


SEC.  II.]  THE   COMPLAINT.  171 

issory  notes,  it  was  sufficient  to  aver,  with  respect  to  the  time  of 
payment,  "which  period  has  now  elapsed.^'  If  it  appeared  upon 
the  face  of  the  declaration,  however,  that  the  time  of  payment 
had  expired,  no  averment  was  necessary.  Nor,  indeed,  would  a 
demurrer  lie  to  a  declaration,  unless  it  appeared  affirmatively  upon 
its  face  that  the  cause  of  action  was  not  due  when  the  suit  was 
commenced.*  The  rule  has  been  fully  recognized  under  the  Code, 
and  it  has  been  held  that  a  demurrer  will  not  lie  to  a  complaint 
[which  does  not  show  any  credit  was  given],  for  not  averring  or 
showhig  that  the  debt  for  which  the  action  was  brought  had  be- 
come due  at  the  time  of  the  commencement  of  the  action.'' 

[The  broad  language  of  the  court  in  the  case  of  Allen  v.  Pat- 
terson,^ has  been  disapproved  in  the  more  recent  cases.  In  an 
action  against  members  of  a  joint-stooh  association,  after  a  recov- 
ery of  a  judgment  against  the  company  and  return  of  execution 
thereon  unsatisfied,  it  is  not  sufficient  to  allege  that  the  company 
"  became  indebted  to  the  plaintiff  for  goods  sold  and  delivered," 
but  the  facts  showing  the  liability  must  be  set  out.*  This  latter 
case,  however,  has  been  held  to  depend  upon  the  statute  relating 
to  joint-stock  associations,  and  not  to  apply  to  an  action  against 
a  stockholder  of  a  corjyorationJ'  A  complaint  upon  a  promissory 
note,  which  alleges  that  defendant  made  and  delivered  it  to  the 
plaintiff',  setting  out  a  copy,  that  there  is  due  and  owing  the  plain- 
tiff' thereon  the  amount  thereof,  and  which  demands  judgment 
for  that  amount,  is  good.'  So  a  party  who  \im  jperformed  a  writ- 
ten agreement  for  work  and  labor  may  count  upon  the  implied 
assumpsit  of  the  other  party  to  pay  the  stipulated  price,  and 
is  not  bound  to  declare  specially  upon  the  agreement  '^  otherwise 
if  not  performed.*  It  has  been  held,  and,  we  think,  properly, 
that  such  indefiniteness  as  seems  to  be  tolerated  in  Allen  v. 
Patterson,  would  not  be  allowed  if  the  question  were  raised 
on  a  motion  to  make  the  pleading  more  definite  and  certain, 

'  1  T.  R.  116,  2  Dowl.  N.  S.  936,  1  « Kettletas  v.  Myers,  19  N.  T.  231 

Cliit.  PI.  262,  265.  reversing  1  Abb.  403,  3  E.  D.  Smith, 

'^  Maynard  v.  Talcott,  11  Barb.  569 ;  83. 

pee,  also,  Allen  v.  Patterson,  3  Seld.  ■>  Hosley  v.  Black,  28  N.  Y.  443, 444, 

479.  26  How.  97, 17  N.  Y.  227,  21  id.  305, 12 

3  7  N.  Y.  476.  id.  370. 

*  Witherhead  v.  Allen,  8  Keyes,  562,  « 9  Abb.  353,  18  How.  235. 
565,  reversing  S.  C,  28  Barb.  665. 

*  Millei  V.  Wdte,  8  Abb.  N.  S.  46,54. 


172  STATEMENT   OF   FACTS.  [CH.  IT. 

instead  of  by  demurrer/  An  allegation  that  defendants  sold 
property,  as  manufacturers,  is  not  sufficient  to  show  they  were 
Buch.''] 

In  regard  to  averments  and  statements  in  complaints  on  promis- 
sory notes  and  other  written  instruments,  the  following  rules  of 
pleading  may  be  noticed,  founded  mostly  on  decisions  made  since 
tne  Code.  In  an  action  by  indorsee  against  the  indorser,  an 
averment  of  protest  of  the  note  is  necessary  to  charge  the  indorser.^ 
[But,  although  not  ad^dsable,  the  want  of  such  an  allegation  may 
probably  be  supplied  by  an  allegation  that  "  plaintiffs  have  duly 
performed  all  the  conditions  in  said  contract  on  their  part."]  In 
such  a  suit  it  is  necessary  to  prove  a  presentment  and  demand 

at  the  ylace  specified  in  the  note  for  payment.*  And  if 
[*224:]  *  payable  at  a  particular  bank  the  demand  must  be  alleged 

and  proved  to  have  been  made  at  the  bank.  An  averment 
that  the  demand  was  made  of  the  cashier  is  not  sufficient.'  Before 
the  Code,  therefore,  it  was  necessary  that  these  facts  should  be 
specially  averred  in  the  pleading.  But  since  the  Code  it  seems  a 
general  statement  that  the  note  was  "  duly  presented  "  and  "  duly 
demanded,"  is  sufficient  under  section  162,  which  dispenses  with 
the  necessity  of  pleading  the  facts  shewing  the  performance  of  a 
condition  precedent  in  a  contract.' 

It  is  necessary,  on  the  face  of  the  complaint,  to  show  that  the 
party  bringing  the  suit  is  the  lawful  holder  or  owner  of  the  note. 
A  complaint  by  indorsee  against  indorser,  averring  merely  an 
indorsement  in  blank  by  the  payee,  but  without  alleging  that  the 
plaintiff  was  the  lawful  holder  of  the  note,  was  held  to  be  defect- 
ive in  the  New  York  common  pleas.*  The  same  court  held  that 
a  mere  allegation  that  the  plaintiff  was  the  lawful  holder  of  the 
note,  without  averring  that  the  note  was  indorsed  by  the  payee 
to  the  plaintiff,  was  insufficient,  the  allegation  being  a  mere  con- 
clusion of  law^* 

>  Vheesebrough  v.  New  York,  etc.,  26  "  17  Johns.  256, 11  Wheat.  171. 

Barb.  9, 14,  13  How.  557,  560.  « 19  Johns.  419. 

'  Smith    V.    Maicliood,  14    Mees.    &  '  Oay  v.  Paine,  5  How.  Pr.  107. 

Welsh.  452.  *  Hoxie  v.  Cushvian,  7  Leg.  Obs.  139. 

« N.  Y.  Com.  Pleas,  1  C.  R.  102  ;  7  »  Vanderpod  v.  Tarbox,  7  Leg.  Obs. 

L.  O.  23  ;  [Conkling  v.  Oandall,  1  Keyes,  150. 
328.1 

■•  Butchers'  Bank  v.  Jacobson,  15  Abb 
220,  24  How.  204. 


SEC.  II.]  THE   COMPLAINT.  173 

And  the  same  rule  was  recognized  in  an  early  case  at  special 
term  of  the  supreme  court.'  A  similar  doctrine  is  countenanced 
in  the  case  of  Parker  v.  ToUen^  where  it  was  said  that  the  mere 
holder  of  a  negotiable  promissory  note,  who  has  no  interest 
[*225]  *  in.it,  cannot  now  maintain  such  action  upon  it,  and  there- 
fore the  complaint  must  state  facts  sufficient  to  show  the 
plaintiff's  title,  interest  in,  or  ownersliip  of,  the  note.  But  in 
Lord  V.  ClieseborougJi^  in  the  New  York  superior  court,  it  is 
intimated  that  a  general  averment  of  ownership  would  be  suffi- 
cient without  alleging  an  indorsement  over  to  the  holder,  or  other 
facts  going  to  establish  the  ownership.  And  in  Taylor  v.  Cor- 
hiere^  which  was  an  action  by  the  indorsee  against  the  maker  of 
a  promissory  note,  the  complaint  alleged  that  the  note  "  was  duly 
indorsed  by  the  payee,  and  transferred  to  the  plaintiff  for  a  good 
and  valuable  consideration,  and  that  the  defendant  had  not  paid 
the  same,  but  was  justly  indebted  to  the  plaintiff'  therefor." 
This  was  held,  notwithstanding  the  case  of  Beach  v.  Gallup,  a 
sufficient  averment  that  the  plaintiff  was  the  owner  of  the  note  at 
the  time  of  commencing  suit.  And  in  James  v.  Chalmers,^  in 
the  superior  court,  affirmed  by  the  court  of  appeals,'  in  an  action 
by  the  indorsee,  it  was  declared  sufficient  to  aver  that  the  note 
was  indorsed  to  the  plaintiff',  without  averring  any  consideration 
for  the  indorsement.  The  presumption  of  law,  it  was  said,  is, 
that  the  holder  is  the  owner.  He  is  not  required  to  aver  or  prove 
that  it  was  transferred  for  value,  whether  it  came  into  his  hands 
before  or  after  it  was  due.  If  the  suit  be  brought  directly  by  the 
payee  against  the  maker,  it  is  held  unnecessary  even  to 
[*226]  allege  that  the  plaintiff  is  the  owner  or  party  in  interest,  *or 
that  the  note  is  due,  or  v/hen  it  is  payable  by  the  terms 
of  it ;  to  say  that  the  defendant  is  indebted  and  promised  is  suffi- 
cient. So  held  at  special  term  in  -Peets  v.  Bratt,  on  demurrer.'' 
The  plaintiff  is  required  to  pmve,  in  a  suit  on  a  promissory 
note,  1st,  the  identity  of  the  note;  2d,  his  interest  in  it;  3d,  that 
the  defendant  is  a  party  to  it ;  •ith,  that  the  defendant  has  not  per- 
formed his  contract.*     The  possession  of  the  note  is  prima  facie 

»  Beach  V.  Gallup,  2  Code  R.  66.  ^  5  Sandf.  53. 

«  10  How.  Pr.  2;34.  « 3  Seld.  309. 

»  4  Sandf.  696,  1  C.  R.  N.  S.  332.  '  6  Barb.  S.  C.  663. 

*  8  How.  Pr.  385.  «  Qiesson  v.  Giesson,  1  C.  R.  N.  S.  414 


174  STATEMENT   OF   FACTS.  [CH.  IV. 

evidence  that  it  is  not  paid.*  So,  too,  it  is  of  o^mersliip,  even 
where  there  is  no  averment  of  ownership  in  the  complaint,  and 
the  answer  does  not  set  up  such  a  defense." 

Copy  of  written  instrument^  when  such  complaint. — It  has 
been  thought  that  the  law  in  respect  to  the  form  of  complaint  on 
all  written  instruments  for  the  payment  of  money,  has  become 
obsolete  by  the  amendment  to  section  162  of  the  Code,  which  is 
as  follows : 

"In  an  action  or  defense  founded  upon  an  instrument  for  the 
payment  of  money  only,  it  shall  be  sufficient  for  the  party  to  give  a 
copy  of  the  instrument,  and  to  state  that  there  is  due  to  him  thereon, 
from  the  adverse  party,  a  specified  sum  which  he  claims." 

It  is,  however,  erroneous  to  suppose  that  this  clause  of  the  Code 
makes  a  mere  copy  of  the  note,  or  other  written  instrument,  in  all 
cases  a  sufficient  statement  of  a  cause  of  action.     Enough  must 

also  appear  on  the  face  of  the  complaint  to  show  that  the 
[*227]  *  present  plaintiif  has  a  right  to  maintain  the  action  against 

tlie  present  defendants.  The  plaintiff's  interest  in  the 
note  is  an  essential  fact  to  be  proved,'  and  it  must  be  averred 
either  expressly  or  by  necessa/ry  implication.  If  the  action  be  by 
the  payee  in  person,  a  copy  of  the  note  will,  in  general,  be  suffi- 
cient, without  accompanying  it  with  an  averment  to  show  the 
plaintiff's  ownership  or  interest,  within  the  principle  of  Peets  v. 
Bratt*  2indi  James  v.  Chalmers^"  supra  ',  and,  should  the  defendant 
wish  to  show  in  his  defense  that  the  plaintiff  has  parted  with  his 
interest  in  the  note,  he  must  allege  such  fact  on  his  part  in  his 
answer.  Possession  of  the  note,  as  we  have  seen,  raises  the  pre- 
sumption of  ownei'ship  sufficient  to  make  out  a  prima  facie  case 
to  sustain  the  action,  which,  however,  under  such  a  state  of  plead- 
ings, the  defendant  would  be  at  liberty  to  disprove. 

But  the  case  is  different  if  the  right  of  action  has  vested  in,  and 
the  suit  is  brought  by,  a  third  person.  The  question  came  up  in 
the  superior  court  in  Lord  v.  Cheseborough,*  as  to  the  effect  of 
this  amendment  to  the  Code  in  such  a  case,  and  it  was  held  that, 
in  a  complaint  on  a  written  instrument,  where  the  plaintiff  is  not 

1  Id.  *  6  Barb.  S.  C.  662. 

2  Iloxie  V.  Cushman,  7  L.  O.  149.  « 2  Seld.  209. 

^Oies.wn  v.  Giesson,  1  C.  R.  N.  S.  «4  Sandf.  696,  1  C.  R.  N.  S.  322; 

414;   [Uonkling  v.  Oandall,  1   Keyes,  [ConkUn;-;  \.  Oandall,!  Keyes,  228]. 
228]. 


SEC.  II.]  THE   COMPLAINT.  175 

tlie  party  to  whom  the  instrument  was  made  payable  and  delivered 
by  the  defendant,  the  complaint  should  show,  by  some  suitable 
allegation,  the  plaintiff's  right  to  sue  thereon.  In  that  case 
[*22S]  the  holder  of  the  note  sued  the  makers,  *  setting  forth  a 
copy  of  the  note  drawn  by  the  defendants,  payable  to  their 
own  order,  and  indorsed  by  them  in  blank,  and  claiming,  as  due 
thereon,  a  specified  sum.  Justice  Sandfokd,  in  his  opinion  in 
that  case,  says:  "It  is  said  that  section  162  is  intended  as  a 
substitute  for  the  statute  allowing  parties  to  sue  the  several 
parties  to  bills  and  notes  by  a  declaration  containing  only  the 
common  money  counts,  with  a  copy  of  the  bill  or  note  sued  on 
attached  to  the  declaration ;  but  we  do  not  see  the  analogy,  nor 
how  it  helps  the  plaintiffs.  That  statute  made  no  change  in  the 
form  of  pleading.  It  seems  to  us  that  the  complaint  in  this 
case  is  defective  in  not  showing,  by  some  appropriate  averment, 
the  transfer  of  the  note  in  suit  to  the  plaintiffs,  or  that  they 
are  the  lawful  holders  and  owners  of  the  note ;  and  we  think 
that  it  was  competent  to  the  defendants  to  traverse  as  they  have 
done  the  transfer  of  the  note  to  the  plaintiffs  and  their  owner- 
ship." 

The  propriety  and  good  sense  of  this  construction  of  the  statute 
must  be  apparent.  It  is  presumed  if  the  note,  instead  of  having 
been  indorsed  in  blank,  had  been  indorsed  to  the  plaintiff,  a  copy 
of  such  indorsement,  with  the  allegation  that  such  a  sum  was  due 
to  the  plaintiff,  would  have  been  a  sufficient  averment  or  sug- 
gestion of  the  plaintiff's  interest  and  right  to  maintain  the  action 
within  this  section  of  the  Code  and  the  case  already  cited.*  The 
rule  was  carried  still  further  in  the  subsequent  case  oi  Alder 
[*229]  V.  Blooming dale^  in  which  the  opinion  of  the  *  court,  de- 
livered by  DuER,  J.,  was  concurred  in  by  aU  the  judges 
of  that  court.  The  action  was  by  indorsee  against  maker  and  in- 
dorser  of  a  promissory  note,  and  though  the  complaint  set  forth  a 
copy  of  the  note,  and  averred  that  it  had  been  duly  indorsed  to 
the  plaintiff,  yet  it  contained  no  averment  that  it  had  been  duly 
presented  to  the  maker  for  payment,  and  that  notice  of  protest 
had  been  given.     On  demurrer  by  the  indorser,  the  complaint  was 

'  See  Andremy.  Astor  Bank,  3  Duer,        « 1  Duer,  601 ;  [Conkling  v.  Oandall, 
629.  1  Keyes,  228 ;  Bequa  v.  Guggenheim,  3 

Lans.  51]. 


176  STATEMENT   OF  FACTS.  [CH.  TV. 

held  to  be  bad.  Section  162  of  the  Code  did  not,  it  was  thought, 
apply  to  the  contract  of  an  indorser,  or  allow  the  instrument  itself 
to  be  set  forth  as  a  sufficient  cause  of  action,  without  the  averment 
of  a  demand  of  paj^ment,  notice  of  protest,  etc.  "  Such  a  demand 
of  payment,  or  notice  of  dishonor,"  says  the  court,  "  or  a  state- 
ment of  facts  by  which  they  are  excused,  the  plaintiff  must  prove 
upon  the  trial,  and  the  facts  thus  necessary  to  be  proved,  as  they 
constitute  in  part  the  cause  of  action,  must  be  averred  in  the  com- 
plaint." The  decision  in  this  case  is  placed  on  the  ground  that  the 
contract  of  an  indorser  is  not  a  "  written  instrument  for  the  pay- 
ment of  money  only,"  within  the  meaning  of  the  Code,  and  that 
an  action  against  such  indorser  is  not  an  action  "  founded  upon  " 
such  instrument,  as  in  the  case  of  Lord  v.  Cheeshorough^  but  that 
the  action  is  "  founded  on  something  more  than  the  note,  and  that 
something  must  be  averred."  The  principle,  I  apprehend,  is  sound, 
and  can  be  maintained ;  and,  although  it  has  been  controverted  at 

the  general  term  of  the  supreme  court,  in  the  New  York 
[*230]  district,*  as  it  is  *  said  by  the  unanimous  opinion  of  all  the 

judges  of  that  district,  yet  it  has  been  followed  and  ap- 
proved in  other  parts  of  the  State.  Such  was  the  decision  of  Mr. 
Justice  Welles,  in  Baiik  of  Geneva  v.  Gulick^  a  case  in  all  re- 
spects similar  to  that  of  Alder  v.  Bloomingdale^  wherein  it  was 
held  that  a  complaint  against  an  indorser  which  sets  forth  a  copy 
of  the  note,  but  does  not  aver  demand  of  payment  of  the  maker, 
and  a  notice  of  protest,  is  bad  on  demurrer,  and  is  not  cured  by 
section  162.  Indeed,  the  court  intimates  the  opinion  that  the 
section  was  designed  merely  to  relieve  a  party  from  setting  out 
the  written  instrument,  according  to  its  legal  effect^  and  was  not 
intended  to  change  the  rules  of  pleading  elsewhere  provided  in 
the  Code.  A  practice  equally  strict  is  indicated  by  Justice  Bacon 
in  Prindle  v.  Caruthers.*  The  plaintiff,  who  was  the  assignee  of 
the  note  or  instrument,  a  copy  of  which  was  set  forth  in  the  com- 
plaint, alleged  that  such  instrument  "  was  the  property  of  the 
plaintiff  by  purchase,"  and  this  was  held  insufficient  on  demurrer. 
The  plaintiff,  it  was  said,  must  state  his  interest  in  or  title  to  the 
instrument,  and  such  other  facts  outside  of  it  as  are  necessary  to 

•  Roberta  v.  Morrison,  11  Leg.  Oba.    Payne,  5  How.  107 ;   and  Banner/  v. 
60.  Smith,  6  id.  420. 

•  8  How.  Pr.  61 ;  see,  also,  Gay  v.        » 10  How.  Pr.  33. 


SEC.  II.]  THE   COMPLAINT.  177 

recover  upon  it ;  and  the  dictum  of  Judge  Welles,  in  Bcmk  of 
Geneva  v.  Gulick^  supra^  that  this  provision  of  the  Code  was 
intended  merely  to  relieve  a  party  from  setting  out  the  instrument 

according  to  its  legal  effect  was  approved. 
[*231]      *  The  true  application  of  the  section  of  the  Code  under 

consideration,  I  apprehend,  is  to  be  found  in  that  class 
of  cases  where  the  action  is  upon  a  written  instrument  for  the 
fayment  of  money  only,  as  a  note,  a  bond,  etc.,  and  the  parties  to 
the  action  are  the  parties  to  the  original  contract  [without  proof 
of  any  extrinsic  fact,  such  as  protest,  etc.].  In  all  such  cases  a 
complaint  is  sufKcient,  which  is  properly  entitled  in  the  names  of 
the  parties,  and  contains  a  copy  of  the  instrument,  with  a  state- 
ment and  claim  of  the  amount  due  thereon,  without  alleging  any 
extrinsic  facts.  Thus,  in  the  recent  case  of  Andrews  v.  The  Astor 
Baiik^  the  action  was  against  the  defendant  as  acceptor  of  a  bill 
of  exchange,  which  was  accepted  by  the  defendant  as  president 
of  the  bank.  The  complaint,  containing  a  copy  of  the  bill  and 
acceptance,  was  held  good  under  section  1 62  of  the  Code,  without 
any  allegation  that  the  bank  accepted  the  bill,  or  that  the  defendant 
was  president  of  the  bank,  or  as  president  had  authority  to  accept, 
and  the  decision  was  thought  by  the  court  to  be  perfectly  consistent 
with  its  prior  decisions  in  Lord  v.  CJieesborough  and  Adler  v. 
£loo7ningdale.  So  in  ChappeU  v.  Bissell,^  in  the  supreme  court, 
the  action  was  upon  a  promissory  note  by  payee  against  maker. 
A  complaint  entitled  in  the  names  of  the  parties,  giving  a  copy 

of  the  note,  and  alleging  a  sum  due  thereon,  for  which  the 
[*232]  plaintiff  demanded  *  judgment,  was  held  sufficient;  and, 

although  the  plaintiff  in  the  suit,  "  James  Chappell,"  was 
described  as  payee  in  the  note  by  the  name  of  "  J.  Chappell,"  the 
pleading  was  held  good,  without  any  averment  that  the  plaintiff 
and  payee  of  the  note  were  the  same  persons.  That  fact,  it  was 
considered,  must  be  implied  in  support  of  the  pleading. 

But  in  most  or  all  other  cases  of  written  instruments  for  the 
payment  of  money,  except  wlcere  the  parties  to  the  action  are  the 
parties  to  the  original  ccntract,  it  will  be  necessary  to  aver  the 
extrinsic  facts,  showing  the  plaintiff's  title  or  right  to  maintain 

'  2  Duer,  629.  '  10  How.  Pr.  275  {Conkli:ig  v.  Oan^ 

dall,  1  Kejes,  231]. 

23 


178  STATEMETs^T   OF   FACTS.  [CH,  IV. 

the  suit,  notwitlistanding  section  162.  In  sucli  cases  the  remarks 
of  tlie  court,  in  Banh  of  Geneva  v.  Gul/'ck,  supra^  are  properly 
applicable,  namely,  that  it  could  not  have  been  intended  to  excuse 
the  plaintiff  "  from  stating  his  interest  in,  or  title  to,  or  from  alleg- 
ing such  other  facts  outside  of  the  instrument  as  are  necessary  to 
enable  him  to  recover  upon  it."  In  the  case  cited  by  way  of 
illustration,  of  a  suit  on  a  note  signed  A  B  &  Co.,  it  cannot  for 
a  moment  be  supposed  that  a  plaintiff  might  bring  his  action 
against  A  B  &  Co.,  on  a  simple  copy  of  the  note,  without  setting 
forth  the  names  of  all  the  parties  defendant,  and  averring  that 
such  parties  compose  the  firm  of  A  B  &  Co.  So,  too,  a  complaint 
by  the  obligee  against  one  of  two  joint  obligors  of  a  bond,  which 
merely  set  forth  a  copy  of  the  bond  with  a  demand  of  the  amount 
due,  without  an  averment  of  the  death  of  the  other  obligor,  would 

no  doubt  be  bad  on  demurrer. 
[*233]      *  These  principles  have  been  well  understood  and  applied 

by  the  courts  of  one  or  two  sister  States  under  similar 
statutes.  In  Indiana,  in  a  suit  entitled  in  the  name  of  an  execu- 
tor, a  promissory  note  given  by  the  defendant  to  the  testator,  filed 
as  the  cause  of  action,  was  held  to  be  insufiicient  under  a  statute 
authorizing  the  filing  of  a  note  or  other  written  instrument  as  a 
sufficient  statement  of  the  plaintiff's  demand.  The  supreme  court 
of  that  State  held  that  the  mere  description  of  the  plaintiff's  per- 
son, as  executor  in  the  title  of  the  suit,  was  not  enough  to  show 
liis  connection  with  the  demand.  There  should  have  been  an 
averment  to  show  his  interest  in  the  note."  So  in  a  suit  by  hus- 
band and  w^ife  on  a  note  payable  to  the  wife  before  marriage,  a 
copy  of  the  note  is  not  of  itself  a  sufficient  statement  of  demand 
without  an  averment  of  her  marriage  with  the  co-plaintiff.'  So 
on  a  note  of  a  firm,  signed  in  the  partnership  name,  the  complaint 
should  contain  the  names  at  length  of  the  firm,  with  an  averment 
that  such  parties  compose  the  firm,  it  being  said  by  the  court  that 
"  the  statute  dispenses  with  a  formal  declaration,  but  it  does  not 
dispense  with  parties  to  suit."  *  The  general  rule  under  the  statute 
in  that  State  seems  to  be,  that  whenever  a  written  contract  is  filed 
as  a  statement  of  the  cause  of  action,  a  want  of  an  averment  of 

>  8  How.  Pr.  51.  »  4  Black.  Ind.  147. 

« 6  Black.  Ind.  88.  *  3  Black.  Ind.  323. 


SEC.   II.]  THE    COMPLAINT.  179 

facts  connected  witli  tlie  contract,  and  necessary  to  be  proved  on 
the  trial,  is  not  a  fatal  objection,  if  enough  be  stated  to  har  another 
suit  for  the  same  demand}  Or,  as  the  rule  was  laid  down 
[*234]  in  *  a  very  early  case : '  "  No  action  can  be  supported  for 
any  demand  whatever,  unless  the  demand  is  so  far  identi- 
fied by  description  as  to  be  distinguishable  from  any  other  demand 
of  like  nature.  Its  most  prominent  features  must  be  delineated, 
so  as  to  be  known  wherever  they  make  their  appearance,  that  one 
recovery  may  har  every  future  attempt  to  enforce  the  same  de- 
mandP ' 

Conditions  precedent.  —  The  section  of  the  Code  above  refer- 
red to,  in  respect  to  the  pleading  of  written  instruments,  has 
made  an  important  change  in  this  respect.  It  was  a  general  rule, 
subject  to  some  exceptions  under  the  old  system,  that  in  pleading 
the  performance  of  a  consideration  or  covenant,  the  party  could 
not  plead  generally  that  he  had  performed  the  covenant  or  condi- 
tion, but  must  show  specially  the  time,  place  and  manner  of  per- 
formance.* Where  a  specific  act  was  to  be  done  by  the  plaintiif, 
or  any  number  of  acts,  by  way  of  condition  precedent,  he  must 
show  in  pleading  precisely  what  he  has  done  by  way  of  perform- 
ing them.*  The  Code,  however,  has  altered  this  rule,'  and 
[*235]  provides  that  "  it  may  he  stated  generally  that  the  ^ party 
duly  performed  all  the  conditions  on  his  part^  and,  if 
such  allegations  he  controverted,  the  party  pleading  shall  he  hound 
to  estahlish  on  the  trial  the  facts  showing  such  performance. " 

["Where  the  party  absolutely  refuses  to  perform,  that  fact  may  be 
averred.  In  such  case  it  is  unnecessary  to  allege  a  tender  of  perform- 
ance,^ even  though  the  full  time  for  performance  has  not  elapsed.'] 

If  the  performance  of  the  condition  precedent  is  not  denied  in 

'  6  Black.  Ind.  148.  injury  of  which  he  complains,  if  it  be 

'  Bond  V.  Paterson,  1  Black.  Ind.  3,  founded  on  tort;  and  in  actions  founded 

4,  5.  on  contract  the  account,  note,  bill,  bond 

^  It  is  to  be  remarked  that  these  decis-  or  other  statement  in  writing  of  the 

ions  are  all  on  suits  arising  in  justices'  nature  of  the  demand  on  which  he  in- 

courts,  the  courts  of  record  in  that  State  tends  to  rely."     The  above  decisiouH, 

at  that  time  following  the  old  common-  therefore,  are  not  inapplicable  to  oiir 

law  rules   of   pleading.     The    statute  Code. 

regulating  pleading  in  justices'  courts  ■*  Steph.  on  PI.  334. 

is   substantially   the   same    Avith    our  ^  24  Wend.  163. 

Code.     It   provides   that  the  plaintiff  *  §  163. 

Bhall  "file  with  the  justice  a  concise  ''  Sears  y.  Conover,ZZ 'Row.  2,24:-,  Reed 

statement,  in  writing,  of  his  cause  of  v.  Board,  etc.,  id.  237. 

action,  or  the  nature  of  the  wrong  or  *  Burtis  v.  Thompson,  42  N.  T-  246. 


180  STATEMEIN^T   OF   I'ACTS.  [OH.  IV. 

the  answer,  of  course  no  proof  is  necessary,  for  every  material 
allegation  in  the  complaint,  not  controverted  in  the  answer,  is  to 
be  taken  as  true.  '  Under  this  section  it  has  been  held  that  in  a 
complaint  against  the  indorser  of  a  promissory  note,  payable  at  a 
particular  place,  an  averment  of  presentment  and  demand,  at  the 
place^  was  not  necessary,  and  that  an  averment  that  when  the  note 
became  due  it  was  "  duly  presented,"  and  payment  thereof  "  duly 
demanded,"  was  sufficient  —  the  presentation  and  demand  being 
a  condition  precedent  in  the  contract,  and  the  Code  authorizing  it 
to  be  stated  in  general  terms.' 

But  in  an  action  to  recover  the  price  agreed  to  be  paid  for  a 
building,  it  is  not  enough  to  allege  that  the  plaintiff'  performed  all 
the  conditions  of  the  contract,  on  his  part,  except  wherein  the  same 
was  afterward  wavoed  and  altered  hy  the  direction,  consent  or 
negligence  and  fault  of  the  defendants.  Such  a  complaint  is  bad 
on  demurrer.  It  should  have  alleged  the  terms  of  the  modified 
contract  and  then  have  averred  generally  a  performance  of  the 
contract  as  thus  modified;  or,  if  the  plaintiff"  relied  on  waiver, 
excuse  or  negligence  of  the  defendant,  he  should  have 
[*236]  stated  the  *  ground  of  waiver,  or  the  particular  circum- 
stances constituting  such  excuse  or  negligence." 

[If  a  party  desire  to  pursue  the  form  allowed  by  this  section, 
in  pleading  the  performance  of  conditions  precedent,  instead  of 
the  common-law  mode  of  setting  out  the  facts  showing  perform- 
ance, he  must  allege  substantially,  if  not  literally,  in  the  language 
of  the  Code,  that  "  he  duly  performed  all  the  conditions  of  said 
contract  or  agreement  on  his  part."  The  word  '•'■duly''^  has  a 
very  essential  and  important  meaning,  and  can  hardly  be  dispensed 
with  and  satisfy  the  statute;*  but  a  substantial  compliance  with 
the  requirements  oi  the  section  will  be  held  sufficient  ;*  as  that  the 
plaintiff  has  "  fully  and  faithfully  performed "  the  conditions  on 
his  part  contained  in  the  agreement.*  Under  an  averment  of  per- 
formance of  a  covenant,  an  excuse  for  non-performance  is  not  ad- 
missible ;*  and  if,  instead  of  actual  performance,  the  party  expects 

^  Oay  V.  Paine,   5  How.  Pr.  107;  P(;flp?e  v.  TFr<Zfer,  2"Abb.  42i,423;  (see 

[  Woodbury  v.  Sackrider,  2  Abb.  403 ;  23  Wend.  135.) 

Ferner  v.  Williams,  14  id.  2151.  ■*  Woodhury  v.  Sackrider,  2  Abb.  402; 

«  Smith  V.  Brown,  17  Barb.  431 ;  see,  Adams  v.  S'herill,  14  How.  299. 

also,  Brown  v.  Colie,  1  E.  D.  Smith,  266.  ^  Rowland  v.  Phalen,  1  Bosw.  44. 

»  Hunt  V.  Butcher,    18   How.  538 ;  «  Oakley  v.  Morton.  11  N.  Y.  26. 


SEC.  II.]  THE   COMPLAINT.  181 

to  show  an  excuse  for  it  he  should  plead  the  facta  showing 
such  excuse.*  The  court  maj,  and  usually  will,  allow  the  party 
to  amend  by  pleading  such  facts."  Evidence  of  a  waiver  of 
tender  is,  however,  competent  and  sufficient  to  support  an  aver- 
ment of  tender.*] 

On  honds  and  mstruments  other  than  for  the  payment  of 
money.  —  The  Code  restricts  the  rule  permitting  the  copy  of  a 
written  instrument  to  be  a  sufficient  cause  of  action,  to  actions  on 
instruments  for  the  paymsnt  of  m^oney  only.  On  instruments 
other  than  for  the  payment  of  money,  the  cause  of  action  and 
breach  of  the  contract  must  still  be  set  forth  substantially  as  before ; 
that  is,  the  facts  required  to  be  stated  are  those  which  the  plain- 
tiff must  prove  in  the  first  instance  at  the  trial,  or  be  nonsuited. 
It  is  sufficient  to  set  forth  a  written  contract  according  to  its  legal 
effect,*  but,  where  the  meaning  is  doubtful,  it  is  advisable  to  set  it 
out  in  hoiG  verba  and  leave  the  court  to  construe  it. '  And,  gen- 
erally, under  the  Code,  it  is  the  safest  course,  where  the  action  is 
founded  on  an  instrument  in  writing,  to  annex  a  copy  and  refer 
to  it  as  part  of  the  complaint.*  A  party  declaring  on  an  agi*ee- 
inent  need  only  state  so  much  of  it  as  constitutes  the  engagement 
far  the  breach  of  which  he  complains.  If,  however,  the  defend- 
ant's covenants  are  qualified,  or  the  plaintiflF's  covenants  are 
enlarged  by  the  further  provisions,  it  must  be  stated.''  It  is 
necessary  to  set  forth  in  the  complaint  such  covenants  or  parts  of 
the  agreement  as  relate  to  the  breaches  assigned.* 

What  is  "an  instrument  for  the  payment  of  money 
[*237]  *  only,"  within  the  purview  of  this  section  of  the  Code, 
has  been  considered  a  question  not  definitely  settled.  Ac- 
cording to  the  decision  above  cited  of  Alder  v.  Bloomingdale* 
the  section  was  held  not  to  embrace  a  negotiable  promissory  note, 
so  far  at  least  as  to  include  the  contract  of  the  indorser.  That 
decision,  if  it  is  to  be  followed  as  a  rule  of  construction,  has,  as 
we  have  seen,  very  much  restrained  the  application  of  the  section. 
Thus,  an  action  upon  a  policy  of  insurance,  or  any  other  contract 

>  Id.     Clarice  v.  CrandaU,  27  Barb.         «  6  Hill,  476. 
73  ;  Qarvey  v.  Wowler,  4  Sandf .  665.  *  Fairbanks  r.  Bloomfield,  2  Duei; 

^  Hosley  v.   Biack,  28  N.  Y.  438,  353. 
443.  '  2  Denio,  235,  3  id.  363. 

3  Holmes  v.  Holmes,  9  N.  Y.  525.  «  Id. 

<  8  Cow.  36,  3  Wend.  479.  » 1  Dutir,  601. 


182  STATEMENT   OF   FACTS.  [CH.  IV. 

of  insurance,  though,  as  against  the  obligor,  a  contract  "  for  the 
payment  of  money  only,"  was  thought  not  to  be  within  the  scope 
of  the  definition.  The  rule  laid  down  by  the  court  in  that  case 
—  and  it  must  be  admitted  now  to  be  the  settled  rule  of  practice — 
is  tliis,  that  it  must  be  limited  to  cases  in  which  the  obligation 
created  by  an  instrument  for  the  payment  of  money  only,  is  not 
only  certain,  but  simple  and  absolute.  "  And  to  effect  this,"  says 
the  court,  "  the  word  '  only '  may  well  be  understood  to  mean,  not 
merely  exclusive  of  any  other  promise  or  stipulation,  but  free  from 
any  condition  or  contingency.  In  my  judgment  the  clause  is  only 
applicable  where  the  instrument  set  forth  in  a  complaint  is,  upon 
its  face,  evidence  of  the  debt  which  is  claimed  to  be  due,  evidence 
not  merely  of  the  right  of  the  plaintiff  to  recover,  but  of  the 
liability  of  the  defendant  to  pay,  so  that  in  all  cases  where  proof, 
not  merely  of  the  instrument  itself,  but  of  extrinsic  facts,  is  neces- 
sary to  be  given,  the  existence  of  the  facts  must  be  averred 
[*238]  in  the  complaint."  In  all  cases,  *  therefore,  other  than 
those  of  an  action  on  a  simple  written  contract  to  pay 
money  between  the  original  parties  to  the  contract,  it  is  proper, 
not  to  say  necessary,  to  allege  in  the  complaint,  in  addition  to  a 
copy  of  the  instrument,  those  extrinsic  facts  which  must  be  proved 
on  the  trial  in  order  to  enable  the  plaintiff  to  recover.  In  certain 
eases,  indeed,  it  may  be  necessary  to  make  the  extrinsic  allega- 
tions even  in  an  action  on  simple  contract  between  the  original 
parties. 

Assignment  of  hreaches  in  honds  are,  by  statute,  to  be  made  in 
the  following  cases :  "  When  an  action  shall  be  prosecuted  in  any 
court  of  law,  upon  any  bond  for  the  breach  of  any  condition  other 
than  for  the  payment  of  money,  or  shall  be  prosecuted  for  any 
penal  sum  for  the  non-performance  of  any  covenant  or  written 
agreement,  the  plaintiff,  in  his  declaration,  shall  assign  the  specific 
breaches  for  which  the  action  is  brought."  * 

A  breach  is  in  general  well  assigned  by  negativing  the  words 

of  the  condition  or  covenant.*    But  the  assignment  of  two  breaches 

of  the  same  specific  covenant  or  stipulation  is  bad.*     A 

[*239J  breach  according  *  to  the  substance,  though  not  the  letter 

'  2  R.  S.  378,  ^  5,  2  Edm.  St.  302.  »  1  Wend.  207. 

*  5  Johns.   168,  8  id.  Ill,  4  Wend. 
870,  4  Hill.  154. 


SEC.  II.]  THE  OOMPLAITSTT.  183 

of  the  covenant,  is  well  assigned ;'  but  when  tlie  pleader  under- 
takes to  assign  a  breach  coming  within  the  substance,  intent 
or  effect  of  the  covenant,  he  is  held  to  a  more  strict  rule  than 
when  he  follows  either  negatively  or  affirmatively  the  words  of 
the  contract."  In  a  bond  conditioned  to  do  one  thing  or  another, 
the  complaint  must  negative  both.*  And  a  breach  that  the  de- 
fendants did  not  honor  the  plaintiff's  draft  on  one  of  them,  the 
covenant  being  to  honor  a  draft  on  all  of  them,  is  bad.*  In  de- 
claring on  a  note  for  a  certain  sum,  payable  in  specific  articles,  it 
is  enough  to  allege  non-payment  of  the  money ;  non-delivery  of 
the  articles  need  not  be  alleged.*  A  breach  negativing  the  words 
in  a  covenant,  to  "  use  all  necessary  care  and  diligence  in  the  sale 
of  lots,"  is  sufficient.*  A  general  breach  is  sufficient  in  a  complaint 
on  a  bond  conditioned  that  the  party  will  appear  and  abide  the 
order  of  the  court.'  [In  general  it  is  sufficient  to  assign  a  breach 
in  the  words  of  the  condition.  If  the  circumstances  have  not 
taken  place  on  which  performance  was  made  necessary,  the  de- 
fendant must  plead  them,  if  they  lie  properly  within  his  knowl- 
edge.'] If  there  be  any  defect  or  inaccuracy  in  assigning  the 
breach,  it  is  aided  after  verdict,  for  the  court  will  intend  that 
damages  would  not  have  been  given  if  a  good  breach  had  not  been 
ehown." 

Though  it  is  not  necessary  that  the  exact  words  of  a  covenant 
should  be  used  in  assigning  a  breach,  yet  it  must  distinctly  appear, 
by  express  words  or  by  necessary  implication,  that,  admitting  the 
truth  of  the  facts  stated  in  the  complaint,  the  defendant 
[*24:0]  has  broken  *the  covenant.  The  addition  of  the  words, 
"  in  violation  of  the  defendant's  agreement,"  does  not  aid 
a  defective  statement  of  the  alleged  breach  of  the  covenant  or 
contract,  and  so  it  has  been  held  under  the  Code." 

Stateinent  of  defendant s  jpromise  or  contract.  —  ]^ot  only  waa 
a  consideration  necessary  to  be  shown  in  an  action  of  assumpsit^ 
but  the  declaration  was  also  required  to  show,  in  all  cases,  that  a 
promise  had  been  made.     The  word  prornised,   or   something 

»  2  Wend.  583.  '  17  Wend.  59,  21  id.  40. 

«  Per  Bkonson,  J.,  4  Hill,  154.  «  Wilcocks  v.  Nichols,  1  Price,  109, 

3  13  Wend.  597.  »  7  Johns.  461. 

M  Hill.  66.  ^^  Schenck    v.    Naylor,    3     Duer 

'4  Hill,  164.  675. 

»  4  Hill,  154. 


184  STATEMENT   OF  FACTS.  [CH.  IV. 

equivalent  thereto,  must,  it  seems,  be  in  the  declaration,  or  it 
would  be  held  bad  on  demurrer,  and  even  after  verdict  and  judg- 
ment.* No  distinction  existed,  in  pleading,  between  an  implied 
jprorriise  and  an  express  one ;  and  though,  as  regarded  evidence, 
the  law  in  many  cases  implied,  from  certain  facts,  that  a  promise 
had  been  made,  yet,  in  pleading,  the  supposed  promise  itself  was 
alleged  as  the  fact." 

This  rule  was  attempted  to  be  very  strictly  applied  under  the 
Code,  in  the  case  of  Dollner  v.  Oilson.*  It  seems,  however,  im- 
possible to  sustain  that  case,  as  a  rule  of  pleading  under  the  Code, 
either  on  authority  or  principle.  [And  the  contrary  has  since  been 
held.*]  The  true  rule  undoubtedly  is  laid  down  by  Justice  Sill, 
in  Glenny  v.  Hitohins,"  that  the  facts  which  in  evidence  raise 
the  implied  promise  are  to  be  stated,  and  not  the  mere  legal  infer- 
ence." 

In  that  case  it  was  held  not  to  be  necessary  to  aver  in  a  com- 
plaint, for  goods  sold  and  delivered,  a  promise  to  pay  by 
[*241]  the  defendant.  The  sale  and  delivery,  *  it  was  said,  were 
the  issuable y^c^s,  and  the  defendant's  promise  to  pay  was 
a  mere  legal  inference  from  the  facts,  which,  if  controverted,  would 
form  an  immaterial  issue.  Tliis  rule  may  safely  be  applied  to  all 
ether  cases.  If  there  be  an  express  promise,  which  the  plain- 
tiff expects  to  prove,  it  is  a  fact  proper  to  be  alleged.  If  the 
promise  be  implied,  that  is,  if  it  be  a  mere  legal  inference  from 
certain  facts,  the  facts  themselves,  and  not  the  promise,  should  be 
alleged.* 

[Facts,  and  not  mere  conclusions  of  law,  must  be  pleaded.  The 
court  must  be  able  to  see  the  cause  of  action  from  i\\Q  facts  stated. 
Thus,  it  is  not  sufl5cient  to  allege,  in  a  general  way,  that  a  pay- 
ment was  compulsory,  and  not  voluntary.*] 

In  applying  the  rule  that  facts  must  be  stated,  and  not  mere 
inferences  or  conclusions  of  law,  a  confusion  sometimes  arises  by 

>  10  Wend.  487.  «  [Hnight  v.   Child,  34  Barb.   186  ; 

«  1  Chit.  PI.  301.  Cahill  v.  Palmer,  17  Abb.  196], 

'  3  C.  R.  153,  9  Leg.  Obs.  77,  per  Ed-  ■•  See  this  question  more  fully  con- 

MONDS,  .T.  sidered  in  a  subsequent  part  of  this 

*  St.  Jolm  V.  Griffith,  1  Abb.  39 ;  see  chapter,  under  the  head  of  "  Common 

post,  marg.  p.  251.  Counts." 

^4  How.  Pr.  98,  and  see,  also.  Hall  ^  Commernal  Bank  v.  Citi/,  etc.,  41 

and  Southmayd,  15  Barb.  33.  Barb.  341,  affirmed,  41  N.  Y.  619  ;  Lihby 

V.  Rosekrans,  55  Barb.  204. 


gj^C.  II.]  THE   COMPLAIKT.  185 

a  failure  to  draw  tlie  line  of  distinction  between  it  and  that  other 
rule,  which  has  been  also  applied  to  pleadings  under  the  Code 
namely,  that  facts  are  to  le  pleaded  according  to  their  legal  ejfect 
or  operation.'  This  was  the  principle  upon  which  the  case  ot 
Dollner  v.  Gibson  was  placed,  and  a  brief  examination  ot  the 
subiect  will  be  necessary  here.  ,.77  7 

The  meaning  of  the  rule,  that  thi^igs  are  to  le  pleaded  accord^ 
inq  to  their  legal  effect  or  operation,  was,  that  in  stating  an 
instrument  or  other  matter  in  pleading,  it  might  be  set  forth,  not 
according  to  its  tenor,  but  according  to  its  effect  in  law.     As  if  a 
ioint  tenant  conveyed  to  his  companion  by  the  words     gives, 
"grants,"  etc.,  his  estate  in  the  lands  h olden  in  jointure;  this, 
though  in  terms  a  grant,  is  not  properly  such,  in  operation  of  law, 
but  amounts  to  that  species  of  conveyance  called  a  release  ; 
[*2i2]  it  *  should  therefore  be  pleaded  not  that  he  granted,  but 
that  he  released.'     The  rule  in  question  was,  in  its  terms, 
often  confined  to  deeds  and  conveyances.     It   extended,   hov^- 
ever    to  all  instruments  and  contracts,  written  and  verbal,  and, 
inde'ed,  it  may  be  said,  generally  to  all  matters  or  transactions 
whatever,  which  a  party  may  have  occasion  to  allege  m  p  ead- 
inc^    and  in  which  the  form  is  distinguishable  from  the  legal 

effect.* 

This  rule,  as  has  just  been  observed,  was  very  strictly  applied 
in  the  case  of  Dollner  v.  GiUo7i.'     In  that  case  the  plaintifis, 
instead  of  alleging  tliat  they  sold  and  delivered  certam  mei-chan- 
dise  to  the  defendants,  alleged  that  they  sold  it  to  one  A.  M   for 
and  oh  behalf  of  the  defendants,  and  that  said  A.  M.  acted  as 
ao-ent  for  the  defendants,  etc.     A  motion  was  granted  to  strike 
out  from  the  complaint  all  that  related  to  the  agency,  the  court 
holdino-  that  the  act  of  the  agent  was  to  be  pleaded  as  the  act  of 
his  principal,  that  being  its  legal  effect.     In  other  words,  that  the 
party  in  such  case  not  only  might,  but  must,  plead  the    egal  con- 
clusion or  effect  of  the  facts,  instead  of  the  facts  themselves,  even 
if  he  desired  to  verify  the  pleading.     This  was  applying  a  more 
technical  rule  to  pleadings  under  the  Code  than  had  previously, 

:  8  Barb  S.  C.  252.  7  id.  80    3  Code        ^  1  Salk.  8-  S^epl..  PL  m  1  CMtty'e 
R.^153,   1   Meea.   &   Wels.   6.   13    id.     ?!,  f  ^y^f/j,  153, 

2  2  Saund.  97,  4  Mad.  150 
24 


186  STATEMENT   OF  FACTS.  [CH.  TV. 

or,  it  .is  believed,  lias  since  been  done.  It  is,  however,  difficult  tc 
see  how  this  case  can  be  sustained,'  or  in  what  manner  snch  a 
rule  can  be  made  applicable  to  pleadings  under  the  Code- 
[*2i3]  Even  *  under  tlie  old  system  it  was  not  in  all  cases  rigor- 
ously applied.  This  form  of  pleading  was  rather  option- 
al than  compulsory.  "  The  party,"  says  Mr.  Chitty,  "  is  not 
compelled  to  follow  the  precise  form  of  words  in  which  the 
contract  was  made ;  it  suffices,  if  he  state  its  true  legal  eflect  and 
operation."  * 

Thus,  though  a  written  contract  or  deed  should  be  pleaded,  not 
according  to  its  terms,  but  its  legal  effect  or  operation,'  yet,  if  the 
party  chose,  it  might  be  pleaded  in  licec  verba,  and,  where  the 
meaning  was  doubtful,  it  was  advisable  to  do  so  in  order  that  the 
court  might  construe  it."  The  rule  alluded  to,  it  has  been  well 
said,  is  a  very  good  rule  as  a  rule  of  brevity,  but  a  very  bad  one 
as  a  rule  of  certainty.  "  It  is  really  a  rule  of  uncertainty,  since 
it  continually  introduces  the  discussion  of  the  question,  what  is 
the  legal  effect  of  such  things  V  *  Thus,  in  the  case  alluded  tc 
above,'  it  was  said  that  on  a  sale  and  delivery  of  goods,  even 
when  there  was  no  express  promise  to  pay  for  them,  a  promise 
was  always  pleaded,  that  being  the  foundation  of  the  action,  and 
the  legal  effect  of  the  fact  of  the  sale ;  and  the  sale  and  delivery 
were  pleaded  merely  as  the  consideration  of  the  promise.  But  in 
the  case  of  Glenny  v.  Ilitchins^  on  the  other  hand,  it  was  said 
that  the  promise  was  an  inference  or  conclusion  of  law  from  the 
facts  showing  a  sale  and  delivery  of  goods,  and  that  it  was 
neither  material  nor  proper  to  set  forth  such  a  promise 
[*2tl:4]  *  in  the  complaint.  And  the  rule  is  well  settled,  even 
under  the  Code,  that  conclusions  of  law  cannot  be  stated, 
but  the  facts  from  which  such  conclusions  are  derived.  The 
difficulty  in  the  application  of  both  rules  seems  to  be  in  dis- 
criminating between  what  are  strictly  conclusions  of  law, 
which  cannot  be  stated,  and  what  the  legal  effects  of  the  facta 
which,    it   is   said,  may   be   stated,  instead  of  the   facts   them- 

1  Tlie  ciise  is  said  to  have  been  re-        »  3  Hill,  274,  8  Cow.  36,  2  Wend 
versed  n,t  the  General  Term.  479. 

«  1   Chilly's  PI.   304  ;    see,  also,   4        "  6  Hill,  476. 
Wend.   549,  9  id.   135,  8  Cow.  36,  10        ^  Evans  on  PI.  188 
Mass.  230,  320.  «  Dollner  v.  Oihson,  3  Code  R.  153. 

'  4  How.  Pr.  98. 


SEC.  II.]  THE   COMPLAINT.  187 

selves.'     [Nor  should  evidence  to  establish  probative  facts  be  al- 
leged.^] 

Perhaps  it  may  be  more  accurate  to  say  that  the  confusion  has 
arisen  from  failing  properly  to  discriminate  between  what  are 
facts^  which  the  Code  requires  to  be  set  forth  in  the  pleadings, 
and  what  are  legal  conchisions,  which  cannot  be  set  forth.  And 
upon  this  subject,  it  must  be  confessed,  it  is  utterly  impossible  to 
draw  any  positive  and  certain  line  of  distinction.  The  difficulty 
in  which  the  subject  is  involved  is  noticed  in  the  veiy  ingeniously 
reasoned  opinion  of  Mr.  Justice  Selden,  in  Dows  v.  Hotdikiss^ 
from  which  I  extract  the  following :  "  Facts  are  to  be  stated ;  but 
what  are  facts  f  Are  they  pure  matters  of  fact,  unmixed  with 
any  element  of  law?  No  declaration  or  complaint  was  ever  so 
drawn.  If  a  plaintiff  states  his  title  to,  or  ownership  of,  prop- 
erty in  the  usual  form,  is  this  the  statement  of  pure  fact  ?  Clearly 
not.  It  comes  much  nearer  being  the  statement  of  a  mere 
[*245]  matter  of  law,  that  is,  of  a  legal  *  right  depending  upon 
facts  not  stated.  Again,  the  common  averment  that  the 
defendant  executed  or  entered  into  a  contract,  is  liable  to  the  same 
criticism ;  or  even  that  he  signed,  sealed  and  delivered  it.  The 
delivery  may  have  been  actual,  or  it  may  have  been  constructive, 
merely.  "What  amounts  to  a  deliveiy  is  a  question  of  law.  It  is 
obvious,  therefore,  that  some  latitude  of  interpretation  is  to  be 
given  to  the  term  facts,  when  used  in  a  rule  of  pleading.  It 
must  of  necessity  embrace  a  class  of  mixed  facts  into  which  more 
or  less  Of*  legal  inference  is  admitted.  A  contrary  construction 
would  tend  to  intolerable  prolixity.  To  determine  precisely  how 
great  an  infusion  of  law  will  be  allowed  to  enter  into  the  compo- 
sition of  a  jpleaddble  fact,  precedent  and  analogy  are  our  only 
guides."  And  the  conclusion  at  which  he  arrives  is  tliis,  that 
"  if  we  would  have  any  light  by  which  to  direct  our  course,  we 
must  adhere  to  established  rules,  and  must  conclude  that  the  word 
"  facts,"  as  used  in  section  142  of  the  Code,  means  precisely  what 

'  Strictly  and  logically  speaking  there  therefore,  under  tlie  Code  in  which  th& 

is  no  difference  between  them,  for  the  legal  effect  or  operation  of  a  contract 

legal  effect  of  the  fact  is  neither  more  may  l)e  stated,  instead  of  the  precise 

nor  less  than  the  conclusion  or  judg-  words  in  which  it  was  made, 

mefti  wliich  the  law  would  pronounce  ^  Dihlee  v.    Corhett,  9    Abb.   j»0,  5 

uiion  the  facts,  thougli,  as  a  rule  of  Bosw.  202 ;  Cahill  v.  Palmer,  17  Abb. 

pleading,  it  has  been  thought,  they  are  196. 

not  identical.      There   may  be   cases,  ^  10  Leg.  Obs.  281. 


188  ■    '  STATEMENT   OF   FACTS.  [CH.  IV. 

the  term  lias  always  meant  when  applied  to  tlie  subject  of  legal 
pleading."  ' 

Thougli  there  is  much  force  and  propriety  in  these  views,  yet 
they  do  not  entirely  solve  the  difficulty,  or  fully  answer  the  ques- 
tion now  under  consideration  which  is  this,  whether  the  rule  that 
facts  must  be  set  forth  according  to  their  legal  effect  is  applicable 
under  the  Code.  Admit  it  to  be  true  that,  in  the  class  of 'cases 
cited  in  the  opinion  referred  to,  the  plaintiff  may  allege  in  his 
complaint  a  delivery,  and  prove  facts,  going  to  show  a  mere  con- 
structive, or  legal  delivery ;  that  he  inay  allege  the  signing  and 
execution  of  a  deed  and  prove  facts  establishing  such  sign- 
[*246]  ing  *  or  execution  as  a  mere  conclusion  of  law ;  that  he 
may  allege  an  actual,  and  prove  a  mere  implied  promise ; 
the  question  recurs  whether  this  must  be  done,  or  whether  it 
should  properly  be  done,  under  the  Code.  Upon  this  point  I 
think  the  cases  decided  since  the  Code  fully  justify  the  conclusion, 
that  the  rule  that  facts  must  be  set  forth  according  to  their  legal 
effect,  is  not  properly  applicable  under  the  Code,  or  at  least  will 
not  be  more  strictly  enforced  than  under  the  old  system,  and 
therefore  the  pleader  will,  in  all  cases  of  doubt,  be  at  liberty  to 
state  "  the  facts  constituting  the  cause  of  action,"  instead  of  under 
taking  to  give  their  legal  effect,  and,  as  in  the  case  of  pleading,  a 
written  instrument,  leave  it  to  the  court  to  construe  them. 

I  am  the  more  confirmed  in  this  view  by  the  authority  of  sev- 
eral well-considered  cases  which  it  may  be  proper  briefly  to  notice 
in  this  place.  In  the  first  of  these  cases  which  I  shall  notice, 
MoMning  v.  Whitheck,^  the  pleadings,  as  stated  in  the  opinion  of 
the  court,  were  as  follows : 

The  plaintift's,  in  their  complaint,  which  was  verified,  alleged 
that  they  were  the  owners  of  a  quantity  qf  merchandise,  describ- 
ing the  articles  particularly,  and  the  value.  That  the  defendants 
illegally  and  unjustly  detained  this  property  from,  and  refused  to 
restore  it  to,  the  plaintiffs ;  and  that  the  plaintifts,  therefore, 
demand  a  judgment  of  delivery  and  costs.  The  defendants 
alleged  that  the  complaint  was  not  true,  but  on  the  contrary, 

^  Oaspar  v.  Adams,  28   Barb.  441;  ported.     The  able  and  conclusive opin- 

Kel/y    V.    BreMsing,    32    id.    601,   af-  ion  delivered  in  the  case  may  be  found 

finned,  33  id.  123.  in  No.  1,  "  Law  Reform  Tracts,"  p.  18. 

■  1  do  not  find  this  case  officially  re- 


SEC.  II.]  THE    COMPLAINT.  189 

[*2i7]  tliat  tlie  goods  were  some  *time  before  sold  and  de- 
livered to  one  of  the  defendants,  and  that,  after  he  had 
disposed  of  a  portion  of  them,  the  residue  were  lawfully  taken  on 
an  execution  against  him  by  the  other  defendant,  as  sheriff,  etc. 
It  seems  in  this  case  to  have  been  conceded  that  the  plaintiffs,  in 
swearing  to  their  ownership  of  these  goods,  and  to  the  alleged 
wrongful  detention  by  the  defendants,  were  merely  dealing  in 
conclusions  of  law.  They  relied,  it  seems,  on  the  fact  that  although 
it  was  true  that  the  goods  were  sold  and  delivered,  yet  the  plain- 
tiffs were  deceived  by  false  and  fraudulent  representations,  consti- 
tuting a  ground  in  law  to  annul  the  sale.  This  was  carrying  out 
to  the  letter  the  doctrine  that  facts  must  be  pleaded  according  to 
their  legal  effect. 

Justice  Roosevelt,  who  delivered  the  opinion  in  the  case,  very 
pointedly  repudiates  the  doctrine  that  facts  must  be  set  forth  accord- 
ing to  their  legal  effect,  and,  with  great  clearness  and  force,  gives 
his  reasons.  Pie  says :  "  In  the  first  place,  then,  we  are  to  inquire 
what,  in  this  law,'  or  in  common  acceptation,  is  understood  by 
the  term  facts.  It  certainly  excludes  all  the  ancient  fictions,  in 
which  the  black-lettered  law  and  the  black-lettered  lawyers  at 
one  time  so  much  delighted.  Fact  is  the  opposite  of  fiction. 
Requiring  the  one  is  rejecting  the  other.  Besides,  the  statement 
of  these  facts  and  matters  was  to  be  sworn  to ;  a  condition  only 
to  be  complied  with  on  the  supposition  of  truth.  The  people 
generally,  and  especially  those  who  had  been  in  the  habit  of  serv- 
ing on  juries,  and,  I  may  add,  a  large  portion  of  the  pro- 
[*248]  fession  *  itself  had  become  disgusted  with  the  old  system 
of  legal  falsehoods;  and  the  Code,  in  the  particular  in 
question,  was  but  the  expression  of  an  almost  universal  public 
sentiment.  Not  satisfied  with  directing  the  written  pleadings  of 
the  parties  to  be  plain  and  concise,  in  other  words  stripping  them 
of  their  prolixity  and  obscurity,  it  enacted  that  they  should  be 
true.  Of  what  avail,  however,  is  this  provision,  if  parties  are  to 
be  allowed,  and  not  only  allowed,  but  required.,  while  discarding 
open,  admitted  fictions,  to  deal  in  the  far  more  dangerous  practice 
of  making  oath  to  legal  conclusions  ?"  The  conclusions  arrived 
at  by  the  learned  judge,  and  his  decision  on  the  motion,  which 

>  Code,  §§  142, 149. 


190  STATEMENT   OF   FACTS.  [CH,  IV. 

was  bj  the  plaintiffs  to  strike  out  as  irrelevant  these  matters  of 
fact,  "  which  must  form  the  real  issue,"  alleged  in  the  answer,  are 
as  follows :  "  I  conclude,  then,  that  the  plaintifl's,  instead  of  strik- 
ing out  the  matters  of  fact  set  up  by  the  defendants,  should  them- 
selves have  fully  stated  the  whole  case  in  their  complaint ;  and 
that  not  having  done  so,  they  must  bring  forward  the  alleged 
fraudulent  representations,  if  such  be  in  truth  the  foundation  of 
their  claim,  in  the  form  of  a  reply  to  the  new  matter  stated  in 
'the  defendants'  answer." 

These  views  are  sustained  by  what  was  said  by  Justice  Bron- 
soN,  in  the  case  of  Eno  v.  Woodworth,  m  the  court  of  appeals.* 
In  that  case  it  was  held  that  money  paid  under  a  contract  to 
convey  land,  void  for  want  of  mutuality,  could  be  recovered 
back  in  an  action  for  money  had  and  received.  In  respect  to 
the  form   of  the  pleading  in  such  an   action.  Justice  Bkonson 

says : 
[*249]  "*"  It  is  true  that  the  pleader  has  stated  the  written 
agreement  and  all  the  facts  necessary  to  show  a  right  to 
recover  upon  it  if  it  is  valid.  But  it  is  also  true  that  the  same 
facts  established  a  right  to  recover  back  the  money,  if  the  agree- 
ment is  void.  This  is  an  action  under  the  Code,  and  the  whole 
case  is  set  forth  in  the  complaint.  Upon  the  case  as  it  is  stated 
in  the  complaint,  and  has  been  found  by  the  jui'y,  the  plaintiff  is 
entitled  to  recover,  whether  the  written  contract  is  good  or  bad  ; 
and  the  defendant  cannot  defeat  the  action  by  giving  it  a  name, 
or  because  the  pleadings  do  not  conform  to  the  old  precedents. 
It  is  questionable  whether  it  would  he  good  pleading  under  the 
Code  to  follow  the  old  form^  and  say^  that  the  defendant  was 
indebted  to  the  plaintiff  in  a  certain  sum,  for  so  much  money 
had  and  received  hy  the  defendant  for  the  plaintiff  ^s  use.  The 
more  proper  course  woidd  seem  to  he  that  which  the  plaintiff 
has  adopted,  of  stating  the  facts  which  show  that  the  defendant 
has  received  money  which  belongs  to  the  plaintiff.'''* 

[The  plaintiff  should  plead  facts,  and  is  entitled  to  such  a 
judgment  as  the  law  pronounces  upon  them,  whether  specifically 
asked  for  or  not.'  The  vendor  of  goods,  fraudulently  purchased, 
may  waive  tlie  tort  and  sue  for  goods  sold  and  delivered  at  once, 

'  4  Comst.  249.  •  Eldrege  v.  Adam.<>,  54  Barb.  417. 


SEC.  TI.]  THE    COMPLAINT.  191 

although  the  stipulated  credit  have  not  expired/  Stating  the 
fraud  for  the  purpose  of  showing  a  riglit  of  rescission  does  not 
make  the  action  sound  in  tort.'  And  so  the  owner  of  goixla 
converted  by  another  to  his  own  use  may  recover  for  goods 
sold  and  delivered,  or  he  may  recover  for  money  had  and  re- 
cei^ed  by  the  tort  feasor."  Nor  does  stating  a  wrongful  refusal 
to  deliver  property  contracted  to  be  delivered  make  the  cause 
of  action  one  in  tort.'  So  where  the  maker  of  a  note  by  mis- 
take sued  for  and  recovered  part  of  a  note,  supposing  the  bal- 
ance to  have  been  paid,  he  need  not  in  an  action  for  such 
balance,  if  he  be  entitled  to  recover  it,  set  forth  the  mistake  which 
in  the  former  suit  caused  him  to  claim  only  a  part  of  the  note.* 
So  on  an  agreement  to  pay  a  certain  sum  at  times  to  be  arranged 
after  another  contract  is  consummated,  although  such  contract 
has  not  been  made,  if  defendant  absolutely  refuse  to  give  his  notes 
or  to  do  anything  about  the  matter.^  So  the  vendor  of  goods 
may  sue  for  goods  sold  and  delivered,  without  alluding  to  the 
check  of  the  purchaser  received  on  the  sale,'  and  may  tender  it 
on  the  trial ;  ^  otherwise,  as  to  negotiable  paper  of  a  third  person 
received  on  a  sale :  that  must  be  tendered  before  suit,*  and  even 
then  the  seller  would  not  be  liable,  unless  promptly  notified  of 
the  failure  of  the  maker  to  pay.  His  liability  is  not  more  exten- 
sive than  it  would  have  been  if  he  had  indorsed  the  bill.'  So 
the  holder  of  a  note  may  sue  thereon,  although  another  note  have 
been  taken  for  a  portion  thereof,  if  it  be  not,  in  fact,  taken  in 
payment  or  paid ;'"  and  a  suit  may  be  maintained  upon  an  instru- 
ment, the  surrender  of  which  was  fraudulently  obtained ;"  after 
the  debtor  has  repudiated  an  usurious  security,  the  creditor  may 
sue  upon  an  original  security,  which  has  been  surrendered,  if  it 
was  not  usurious."' 

*  Roth   V.   Palmer,    27    Barb.  653 ;  «  King  v.  Fitch,  1  Keves,  433 ;  Cen- 
Campbell  v.  Wright,  31  How.  9  ;  Wig.  tral  Bank  v.  Pindar,  40  Barb.  4G7. 
and  V.  Sichel,   33    id.  174,    3  Keyes,  '  Srnith  v.  Mercer,  Law  R.,  3  Exch. 
120;   King  v.  Fitch,  1  Keyes,  449.  51. 

2  Gordon  v.  Hostetter,  4  Abb.  N.  S.  ^^Bates  v.  Rosekrans,  37  N.  Y.  409 ; 

263  ;  Haick  v.  Thorn,  54  Barb.  164.  Smith  v.  Miller,  6  Abb.  N.  S.  234. 

'  Austin  V.  Rawdon,  44  N.  Y.  03.  ^^  Johnson  v.  Ilathorn,  3  Keyes,  477. 

*  Conklin  v.  Field,  37  How.  455.  '^  Winsted  Bank  v.    Webb,  40  Barb 
»  Lee  V.  Becker,  6  Abb.  N.  S.  393.  177,  affirmed,  39  N.  Y.  325 ;  Farmers 

*  Turner  v.  7%e  Bank,  3  Keves,  435 ;     etc.,   v.   Joslyn,    37    id.  353 ;    Cook  v 
Bmith  V.  Miller,  6  Abb.  N.  S.  234.  Barnes,  36  id.  530. 

'  Turner  v.  The  Bank,  3  Keyes,  435. 


192  STATEMENT   OF  FACTS.  [CH.  IV. 

The  vendor  of  goods  may  sue  for  goods  sold  and  delivered, 
tiiongh  he  received  government  certihcates  "  in  payment,"  if  the 
government,  in  consequence  of  a  legal  defense  thereto,  refused  to 
pay  the  same.'  Where  a  party  has  fully  performed  a  contract  for 
work  and  labor,  he  may  sue  in  assumpsit  without  counting  upon 
it,"  even  though  it  be  in  writing ;'  and  the  holder  of  a  bill  or  note 
may  count  upon  it,  and  prove  on  the  trial  to  rebut  the  defense  of 
usury,  that  only  a  part  of  the  face  of  the  note  is  demanded,*  A  land- 
lord may  sue  for  use  and  occupation,  although  the  tenant  entered 
into  possession  under  a  written  lease,  and  did  not,  in  fact,  occupy  the 
premises  during  the  term  for  which  recovery  is  sought,  if  the  power 
to  do  so  was  given  him  by  the  landlord ; '  the  holder  of  a  bill  which 
the  defendant  has  agreed  in  writing  to  accept,  may  plead  such 
facts,  instead  of  alleging  that  the  defendant  accepted  it.'  Indeb- 
itatus asswnpsit  lies  to  recover  back  money  obtained  or  paid  by 
or  through  fraud  ; '  otherwise,  as  to  money  lost  at  gaming,  for  the 
remedy  being  given  by  statute,  the  facts  bringing  the  cause  of  action 
within  it  must  be  averred  ;*  so  to  recover  back  usurious  premium.' 
A  party  to  whom  a  penalty  is  given  may  sue  for  it  in  debt.'"  A 
party  to  an  arbitration  may  resort  to  his  original  cause  of  action 
embraced  therein,  where  the  award  is  void."  Although  the  plain- 
tiff allege  that  assertions  were  false  and  fraudulent,  he  may, 
nevertheless,  recover,  if  he  prove  enough  to  sustain  an  implied 
warranty,  though  no  fraud  be  shown."  The  allegations  of  fraud 
are  mere  surplusage,  and  may  be  rejected  as  such.*' 

And  so  a  complaint  containing  a  statement  ot  facts  constituting 
a  cause  of  action  on  contract,  sustained  by  proof  of  such  facts  on 
the  trial,  although  the  complaint  is  in  form  for  conversion  and 
the  summons  is  in  an  action  for  relief.'*  And  so  a  complaint 
alleging  defendant  contracted  the  debt  in  a  fiduciary  capacity.'* 

'  Wi-ie  V.  Ghn8e,S  Robertson,  35  •  Palen  v.  Johnson,  46  Barb.  21. 

'  Fells    V.    Vestvdli,    2   Keyes,   152 ;  "•  Thompson  v.  Howe,  46  Barb.  289. 

BmitJiY.  Lippincott,  49  Barb.  398.  "  Mortonv.  Cameron,  3  Rob.  189. 

3  llurst  V.  Litchfield,  39   N.  Y.  377,  ^^  jskermanv.  Johnson,  56  Barb. 59. 

post,  825  mnrg.  p.  '^  Fowler  v.  Ahrams,  3  E.  D.  iJmitli,  1; 

*  Sr.hoop  V.  Clarke,  1  Keyes,  181.  Boss  v.  Mather,  Al  Barb.  582  ;  Quintnrd 

*  JIall  V.  Western,  etc.,  34  N.  Y.  284.  v.  Newton,  5  Rob.  72  ;   Williamson  v. 
^  Barney  v.  Worthington,  4  Abb.  N.  Allison,  2  East.  446  ;  Browficld  v.  Jones, 

S.  205, 37  k  Y.  116.  4  B.  &  C.  10  Eng.  C.  L.  R.  380, 1  Greenl. 

'  Butler  V.  Lioermore,  52  Barb.  570;  Ev.,  ij  51. 

Bpxbie  V.  Wood,  24  N.  Y.  607.  "  Conaughty  v.  Nichols,  42  N.  Y.  83, 

*  Stannard  v.  Etynge,  3  Abb.  N.  S.  see  Austin  v.  Rawdon,  44  id.  63. 
42,  33  How.  263.  "  Wood  v.  Henry,  40  N.  Y.  124. 


SEC.  ir.J  THE   COMPLAINT.  193 

But  where  tlie  complaint  alleged  tliat  defendant,  "  to  induce  the 
plaintiff  to  purchase  said  horse,  falsely  and  fraudulently  repre- 
Beuted  the  said  horse  worth,  and  of  the  value  of  $120,  and  guar- 
antied the  said  horse  to  be  sound  in  all  respects,  and  wholly  free 
from  disease,"  and  then  alleged  that  the  horse  had  a  disease  called 
"  sweenie^''  which  said  disease  was  well  known  to  the  defendant 
at  the  time  of  said  sale,  held  that  the  action  sounded  in  fraud  and 
plaintiff  could  not  recover  without  proof  of  scienter ^ 

Where  the  complaint  contains  a  cause  of  action  for  fraud,  and 
also  one  for  warranty,  the  party  will  be  compelled  to  elect  at  the 
commencement  of  the  trial,  for  which  he  will  go,  and  after 
he  has  so  elected,  he  will  not  be  allowed  to  change  his  ground." 

A  complaint  which  alleges  that  defendant  was  employed  as 
plaintiff's  peddler,  to  sell  goods  and  return  the  proceeds  thereof 
to  plaintiff  with  any  goods  not  sold,  and  setting  out  the  contract 
of  hiring,  with  allegations  that  defendant  had  a  portion  of  such 
goods,  and  the  money  received  for  another  portion  thereof,  belong- 
ing to  the  plaintiff,  for  which  he  neglected  and  refused  to  account 
to  plaintiff,  hut  converted  the  same  to  his  own  use,  is  not  an  action 
arising  on  contract ;  the  contract  being  only  inducement  to  the 
action ;  the  gravamen  of  the  complaint  is  the  conversion  of  the 
goods  and  money  by  the  defendant.'  Where  a  vendee  agreed  to 
pay  for  goods  purchased  "  as  she  could,  and  out  of  her  business, 
from  the  proceeds  of  the  sale  of  said  goods,"  this  was  held  not  to 
be  an  agreement  to  pay  as  fast  as  she  conveniently  could,  but  that 
defendant  must  show  affirmatively  that  she  could  not  have  paid 
out  of  her  business  or  from  sales  of  the  goods.*] 

In  a  case  in  the  Kew  York  superior  com^t,^  Justice  Duek 
says :  "  Every  fact  which  the  plaintiff  must  prove  to  enable  him 
to  maintain  his  suit,  and  which  the  defendant  has  a  right  to  con- 
trovert in  his  answer,  must  be  distinctly  averred ;  and  every  such 
amerment  must  he  understood  as  meaning  what  it  says,  and  con- 
sequently is  one  to  be  sustained  by  evidence  wliich  coiTesponds 
with  its  meaning." 

And  again,  the  same  court,  by  the  same  learned  judge,  in  the 

^  Moore  v.  JSToUe,  53  Barb.  435, 36  How.  »  Bidder  v.  WJdtloek,  12   How.  208, 

383  ;  Marshall  v.  Gray,  ;]■)  id.  172  (dis-  Keller  v.    Clark,   18    Abb.    157,    see 

tinguisbing  Bennet  v.  Judaon,  21  N.  Y.  Austin  v.  Raiodon,  44  N.  Y.  (53. 

2o8,  and  Craig  v.  Ward,  3(j  Barb.  377).  *  Johnson  v.  Plowman,  49  Barb.  47a. 

^  Springated  v  Laio.<on,2o  How.  302.  ^  Garvey  v.  Fowler, 4.  Saud.  067. 
25 


194  STATEMENT   OF   FACTS.  [CH.  IV. 

[*250]  case  of  Mann  v.  Morewood.^  "  To  *draw  the  proper  con- 
clusions from  tlie  facts  which  are  relied  on  as  constituting  a 
cause  of  action,  or  a  valid  defense,  is  the  exclusive  province  and 
duty  of  the  court,  and  to  enable  the  court  to  discharge  that  duty, 
the  facts  themselves,  not  the  conclusions  that  are  supposed  to  flow 
from  them,  must  be  stated  in  the  pleading,  without  prolixity,  but 
with  reasonable  fullness  and  certainty."  And  the  question  stated 
in  the  case  of  Eno  v.  Woodworth^  in  the  court  of  appeals,  above 
noticed,  namely,  whether  the  old  form  of  pleading  the  common 
counts  was  now  proper  under  the  Code,  seems  to  be  answered  in 
the  negative.  "  There  can  be  no  demurrer  to  a  count  for  money 
had  and  received,  and  if  such  a  complaint  is  good,  every  pleading 
under  the  Code  may  be  so  framed  as  to  leave  the  adverse  party  in 
total  ignorance  of  the  facts  meant  to  be  proved,  and  yet  be  safe 
from  a  demurrer.  Thus  the  manifest  design  of  the  Code  in  com- 
pelling parties  to  plead  specially,  by  requiring  the  facts  to  be 
stated,  would  be  completely  frustrated,  and  a  system  of  pleading 
introduced  which,  as  universal  in  its  application,  would  be  far 
more  obscure  and  deceptive  than  that  which  has  been  abolished." 
In  this  case  it  was  determined  that  under  a  complaint  which 
claimed  an  indebtedness  arising  from  an  over  payment  of  money 
on  the  settlement  of  an  account,  it  was  not  competent  to  intro- 
duce evidence  to  show  that  such  settlement  was  wholly  eftected 
by  an  order  given  for  the  delivery  of  stock,  no  money  in  fact 
having  been  paid.  The  argument  of  counsel  was  that  payment 
of  stock  was,  in  judgment  of  law,  a  payment  in  money,  and 
might  be  so  described  in  the  complaint,  and  that  money 
[*251]  overpaid,  by  mistake  on  *settlement,  was,  in  judgment  of 
law,  money  had  and  received  by  the  creditor  to  the  use 
of  the  debtor,  and  might  be  recovered  under  a  count  for  money 
had  and  received.  But  the  court,  as  we  have  seen,  did  not  sus- 
tain these  positions. 

This  doctrine  has  been  repeatedly  enforced  in  that  court,  and 
may  be  considered  there  as  the  settled  practice.*     Thus  in  the  case 

'  5  Sand.  558.  the   trespass  had  been  committed  by 

^  And   a]so   in  tlie  N.  Y.   Common  two  of  the  defendants  at  the  instiga- 

Pleas :  Thus  in  the  case  of  7»cs  V.  7/(fTO-  tion  and  request  of  the  third,  wlio,  it 

<phrey  (1  Smith's  Com.  Plea,  198),  in  an  was  averred,  had  employed  the  other 

action  for  trespass  against   three  de-  two  for  that  purpose.     It  was  urged 

fend?.iits,  the   complaint  alleged  that  by  counsel,  ou  the  authority  of  JJoUncr 


SEC.   II.]  THE   COMPLAINT.  195 

of  Smith  V.  Leland^^  the  general  term  of  the  court  hiid  down  a 
rule  directly  the  revei'se  of  that  adopted  in  Dollner  v.  Gibson^ 
holding,  that,  though  the  delivery  of  goods  sold  to  a  third  per- 
son, for  the  use  of  such  person,  under  an  authority  of  the  pur- 
chaser, is,  in  judgment  of  law,  a  delivery  to  such  purchaser,  yet 
it  is  so,  not  as  ^faot,  but  as  a  conclusion  of  law,  and  therefore,  in 
an  action  against  such  purchaser,  an  averment  of  delivery  to  him 
is  insufficient;  but  the  plaintiff  must  aver  the  facts  which  he 
intends  to  prove,  namely,  the  delivery  of  the  goods  to  the  third 
person,  and  his  authority  to  receive  them.  A  general 
[*252]  *averment  of  delivery  to  the  pm*chaser  cannot  be  sup- 
ported by  proof  of  a  delivery  to  a  third  person  under  an 
authority  to  receive  the  goods  sold.  [In  pleading  the  act  of  the 
agent,  it  may  be  alleged  to  be  the  act  of  the  principal,  for  it  is  so 
in  law.''] 

In  the  case  of  Fairbanks  v.  Bloomfield^  in  the  same  court,  a 
demurrer  was  sustained  to  a  complaint  for  a  similar  defect,  namely, 
because  it  dealt  not  in  facts,  but  conclusions  of  law.  The  action 
was  for  damages  for  unlawfully  converting  a  vessel  alleged  to  be 
the  property  of  the  plaintiffs,  the  title  to  the  possession  of  which 
the  plaintiffs  claimed  under  a  certain  mortgage  which  was  not  set 
forth  in  the  complaint;  this  the  court  held  should  hav^e  been  done, 
or,  at  least,  that  so  much  of  the  instrument  as  gave  it  its  charac- 
ter of  a  mortgage,  should  have  been  set  forth,  so  as  to  enable  the 
court  to  draw  the  legal  conclusion  from  the  facts  pleaded  that  it 
was  such  an  instrument  as  vested  in  the  plaintiffs  the  legal  right 
of  possession.  Nor  was  the  complaint  considered  as  aided  by 
the  averment  that  the  defendant  unlawfully  converted  the  ves- 
sel, the  averment  being  also  a  mere  conclusion  of  law,  and  not 
warranted  by  the  facts  which  preceded  it.* 

V.  Oibson,  that  the   complaint  should  cipal.     At  the  same  time  he  thought 

have   stated   the    facts  "  according  to  that  though  the  fact  itself  was  required 

their  legal  effect,"  that  is,  should  have  to  be  stated,  yet  there  was  no  objection 

charged  the  alleged  trespass  as  the  di-  to  the  plaintiff  stating,  in  addition  to 

rect  act  of  all  three  of  the  defendants,  the  facts,  what  he  considered  their  le- 

But  this  view  of  the  case  was  not  af-  gal  effect, 

firmed  bv  the  court.     So  in  the  recent  '  Duer,  497. 

case  of  St.  John.  v.  Grilfith,  in  the  su-  ^  Bevnet  v.  Judson,21  N.  Y.  238. 

preme  court,  1  Abbott's  Pr.  39,  Justice  ^  2  Duer,  349. 

ROOSEVKLT    held   distinctly  tliat  the  *  It  would  seem,  however,  in    this 

act  of  an  airent  could  not,  under  the  case,  within  the  decision  in  Heine  v. 

Code,  be  pleaded  as  the  act  of  his  prin-  Anderson,  2  Duer,  318,  that  the  com- 


196  STATEMENT   OF   FACTS.  [CH.  IV. 

So  in  the  case  of  Llenan  v.  Lincoln^  a  general  allegation  in  a 
complaint  that  the  defendant  had  received  monev,  or  property,  to 
the  use  of  the  plaintiff  was  held  insufficient  on  demurrer. 
[*253]  Whether  a  person  ''%ad  received  money  or  property  to 
the  use  of  another,  is  a  question  of  law  depending  upon 
the  facts  which  are  to  be  litigated,*  and  these  facts  must  be  stated. 
So  in  the  case  of  Lawreiioe  v.  Wright,^  it  was  held  insufficient  in 
an  action  to  recover  real  estate  to  allege  that  the  plaintiff  became 
seized  by  a  lawful  title  to  premises,  which  the  defendant  unlaw- 
fully withholds.  These  allegations  are  not  of  facts,  which,  as 
constituting  the  cause  of  action,  the  Code  requires  to  be  set  forth, 
but  are  merely  conclusions  of  law,  which,  unless  they  follow  from 
the  facts  previously  alleged  in  the  complaint,  must  be  wholly  dis- 
regarded. The  court,  in  this  case,  notices  the  error  which  so  fre- 
quently occurs  in  the  mistaken  interpretation  of  the  words  "  facts 
constituting  a  cause  of  action,"  and  points  out  the  distinction 
between  such  "  facts  "  and  mere  abstract  propositions  in  morals  or 
law  which  in  a  popular  but  not  a  legal  sense  may  also  be  called 
"  facts ;"  and  it  remarked :  "  All  these  errors  in  pleading  will  be 
avoided  if  it  is  constantly  remembered  that  the  facts  which  the 
Code  requires  to  be  set  forth  are  not  true  _propositio7is  but  physi- 
cal facts,  capable,  as  such,  of  being  established  by  evidence,  oral 
or  documentary,  and  from  which,  when  so  established,  the  right 
to  maintain  the  action,  or  the  validity  of  a  defense,  is  a  necessary 
conclusion  of  law  —  a  conclusion  which  the  court  will  draw,  and 
which  it  is  quite  unnecessary  that  the  pleader  should  state." 
These  general  propositions  and  conclusions  lead  us  to  the  consid- 
eration of  another  branch  of  this  subject,  namely : 
[*254]  *2'he  comvnon  counts. — The  rule  of  pleading,  namely, 
that  the  facts  must  be  stated,  and  neither  the  legal  con- 
clusion, nor  the  legal  effects  of  the  facts,  may  now  be  safely 
applied  to  all  cases  where  the  action  is  for  a  common  debt,  or 
money  demand  arising  on  contract,  and  in  which  heretofore  the 
common  counts,  as  they  are  called,  were  used ;  as, 

plaint  would  have   been  good,  if  in-  ment  it  is  held  in  the  case  just  cited 
stead  of  setting  forth  the  evidence  of  that  docamentary  proof  of  title  is  ad- 
title,  and  drawing  the  conclusion  that  missible. 
plaintiff  had  the  right  of  possession,  '  2  Duer,  670. 
it  had  contained  a  general  allegation  '  2  Duer,  673. 
pf  ownersliip.     Under   such  an  aver- 


SEC.  IT.1  THE   COMPLAINT.  197 

For  goods  sold  and  delivered,  or  bargained  and  sold. 
For  work  and  labor  done. 

For  money  bad  and  received  to  tbe  plaintiff's  nse. 
For  money  paid,  laid  ont,  and  expended  for  tbe  defendant. 
For  money  lent. 
For  nse  and  occupation,  etc. 

Tbe  common  counts  were  founded  on  express  or  implied  promi- 
Bes  to  pay  7no7iey  in  consideration  of  a  precedent  and  existing 
debt'  Tbev  were  of  four  descriptions:  1st.  Tbe  indebitatus 
count.  2d.  Tbe  quantum  meruit.  3d.  The  quantum  mleUnt. 
4tb.  Tbe  account  stated, 

Tbe  indebitatus  count  stated  generally  tbat  tbe  defendant  on  a 
day  named  was  indebted  to  tbe  plaintiff  in  a  named  sum  of  money 
for  o-oods  sold,  or  labor,  or  for  money  lent,  paid,  or  bad  and 
received,  or  for  some  otber  pre-existing  debt  on  simple  contract, 
at  tbe  defendant's  request,^^^  tbat  being  so  indebted,  the  defend- 
ant in  consideration  th^reoi,  promised  tbe  plaintiff  to  pay,  etc., 
and  tben  tbe  common  breach,  tbat  tbe  defendant,  altbougb 
requested,  bad  neglected   and  refused  to  pay,  to  tbe  plamtiff's 

damage,  etc. 
[*255]       *Tbe  indebtedness,  accruing  at  tbe  defendant's  req^iest, 
tbe  cause  or  subject-matter  thereof,  and  i\iQ  promise  to  pay, 
constituted  tbe  essence  of  the  indebitatus  count. 

Tbe  quamtum  meruit  and  quantum  valebant  counts  were  m  a 
different  form  ;  tbe  first  alleging  a  promise  on  tbe  part  of  tbe 
defendant  to  pay  as  mucb  as  tbe  i^'^m^ reasonably  deserved^  to 
ham  and  tbe  second  a  \yV%  promise  to  pay  as  mucb  as  tbe  tbmg 
was  reasonably  worUi.  Tbe  account  stated,  also  alleged  '^prorn- 
ise  on  tbe  part  of  tbe  defendant,  on  an  accounting,  to  pay  the 

balance  found  due.' 

These  variousi?row^S65,rd^w^.sfe,  etc.,  tbus  alleged  as  tlie  basis 

of  tbe  common  counts,  were  scarcely  any  thing  more  than  mere 
leo-al  fictions.  They  were  almost  always  matters  implied  by  law 
not  requiring  any  express  proof.  In  pleading  tbere  was  no  dif- 
ference between  an  express  and  an  implied  promise.  J3otb  were 
stated  affirmatively  and  positively,  and  tbe  latter  was  supported 
by  proof  of  a  state  of  fiicts  from  which  tbe  law  drew  tbe  mter- 

>1  Chit.  PI.  340.  3  I  Chit.  PL  340  «. 

2  1  Chit.  PI.  341 


198  STATEMENT   OF   FACTS.  [CIT.  IV. 

ence  of  a  promise.  Thus  in  the  case  of  Eiio  v.  Woodtoorth,  above 
cited,  if  the  pLaintiif  desired  to  recover  back  the  money  paid  by 
him,  on  the  faihire  of  the  defendant  to  fulfill  the  written  agree- 
ment entered  into,  he  would,  under  the  old  system,  have  declared 
on  the  indebitatus  count,  for  money  had  and  received  by  the 
defendant  to  the  plaintiff's  use  at  the  defendant's  re^wes^,  alleging 
Sipromise  to  pay.  And  so  in  the  case  of  Mann  v.  More- 
[*256]  wood,  noticed  above,  he  would,  under  a  precisely  *similar 
declaration,  have  been  allowed  to  give  evidence  of  an 
over-payment  in  money,  or  what  in  judgment  of  law  was  its 
equivalent,  on  the  settlement  of  an  account.  The  defendant,  in 
point  of  fact,  never  requested  him  and  never  made  a  promise ; 
and  none  would  have  been  proved  on  the  trial ;  but  simply  a 
state  of  facts,  from  which  a  request  and  promise  might  be  imjylied 
in  law,  and  which  entitled  the  plaintiff  to  recover.  It  is,  in  real- 
ity, as  much  a  fictitious  mode  of  pleading  as  was  the  manner  of 
stating  a  case  in  trover,  namely,  that  the  plaintiff  casually  lost  a 
chattel,  and  that  the  defendant  found  it ;  the  fact  alleged  was 
never  really  to  be  proved,  but  only  a  state  of  facts  from  which,  as 
a  matter  of  law,  the  losing  and  finding  were  invplied.  This 
method  of  pleading  does  not  seem,  within  the  decisions  last  cited, 
adapted  to  the  genius  and  spirit  of  the  Code,  which  requires  "  the 
facts"  to  be  stated,  not  conclusions,  inferences,  matters  implied  in 
law,  or  the  legal  effect  of  facts.  It  was  a  mere  technical  rule  of 
pleading  which  permitted  (but  did  not  absolutely  require)  an 
implied  promise  to  be  pleaded  as  an  express  promise ;  and  these 
technical  rules  of  pleading,  as  we  have  seen,  are  abolished  by  the 
Code. 

Indeed,  even  under  the  old  system,  the  facts  constituting  the 
cause  of  action  might  be  stated ;  that  is  to  say,  a  special  decla- 
ration might  be  used  in  cases  where  the  common  counts  were 
also  proper ; '  and  in  many  tfases  for  the  sale  of  goods,  for 
[*257]  money  had  and  ^received,  for  work,  labor  and  services, 
the  common  counts  could  not  be  used,  but  the  plaintiff 
must  declai-e  specially  on  the  facts  constituting  his  cause  of  action." 

It  is  not,  however,  meant  to  be  here  said  that  a  cause  of  action 

•  Formerly    these     general     counts     bold  man  who  first  ventured  on  tliem 
were   not   in  use;  and   Lord  Holt  is     1  Chit.  PL  ;543. 
said  to  have  rumarktul,  that  he  was  a         '  See  1  Cow.  Treat,  pp.  126  to  155. 


SEC.  n.]  THE   COMPLAHSTT  199 

under  the  Code,  set  forth  substantially  in  the  fcjrm  of  the  old  in- 
debitatus count,  would  not  be  good,  nor  was  this  so  held  in  Enos  v. 
Woodioorth.  All  that  is  meant  is  that,  under  the  Code,  it  is  not 
uecessarv,  nor  is  it  believed  to  be  proper,  to  allege  in  a  pleading 
an  implied  request  or  an  implied  promise,  or  any  other  matter 
im^plied  hy  law,  either  as  the  foundation  of  the  action  or  as  ancil- 
lary thereto.  The  facts  raising  the  implication,  and  they  alone, 
should  be  stated,  because  they  alone  are  to  be  proved.  The  cases 
of  Tucker  v.  Rusldon^  Manning  v.  Whitljcek^  Mann  v.  More- 
wood^  and  Glenny  v.  Ilitchins^  were  undoubtedly  decided  on 
correct  principles.  In  the  latter  case  it  was  alleged  merely  that 
the  plaintiff  sold  amd  delivered  to  the  defendant  certain  goods, 
describing  them,  to  the  value  of  a  certain  sum,  and  claimed  judg- 
ment in  a  specified  amount.  There  was  neither  a  request  on  the 
part  of  the  plaintiff,  nor  a  promise  by  defendant  alleged ;  and  a 
demurrer,  on  the  ground  that  the  complaint  did  not  allege  a 
promise  or  any  legal  liability  on  the  part  of  the  defendant,  was 
very  properly  overruled.  In  the  former  case  the  complaint  alleged 
an  indebtedness,  and  also  that  the  plaintiff  claimed  a  certain 
[*258]  sum  for  the  use  and  occupation  of  certain  *  rooms  for  a 
specihed  time,  at  a  specified  price,  and  also  for  articles 
furnished  by  plaintiff  for  defendant.    This  also  was  held  sufKcieut. 

The  case  of  Allen  v.  Patterson,  in  the  court  of  appeals,'  seems 
to  be  upon  the  same  pi'inciple.  The  complaint  in  that  case  stated 
that  the  defendant  is  indebted  to  the  plaintiff  in  a  certain  sum 
specified,  for  goods  sold  and  delivered  at  his  request,  on  a  certain 
day  specified,  and  that  such  sum  is  now  due  to  the  plaintiff  from 
the  defendant,  for  which  the  plaintiff  demands  judgment.  This 
complaint  was  held  good  on  demurrer,  the  word  "  due,"  it  was 
said,  importing  not  merely  indebtedness,  but  that  the  time  when 
payment  should  have  been  made  had  elapsed.  The  decision  was 
followed  in  a  similar  case,  Beekman  v.  Plainer^  in  the  supreme 
court  at  general  term. 

I  am  aware  that  it  is  said  by  Mr.  Justice  Ckippen,  in  the 
case  of  Blanohard  v.  Strait,''  that  the  common  counts  under  the 

'  2  C.  R.  59,  7  L.  0.  351.  ^  3  Seld.  476. 

«  Law  Reform  Tracts,  18.  «  15  Barb.  S.  G.  550. 

»  5  Sandf.  558.  ^  8  How.  Pr.  83. 
4  4  How.  Pr.  98. 


200  STATEMENT   OF   FACTS.  [CH.  IV. 

former  system  of  pleading  are  not  sufficiently  definite  and  certain 
under  the  Code,  and  reference  is  made  to  sustain  this  remark,  to 
what  was  said  in  Enos  v.  Woodworth,  in  the  court  of  appeals, 
above  cited.  It  was  further  observed,  in  this  case,  that  "if  a 
question  exists  upon  this  subject  it  should  be  solved  by  holding 
that  it  is  not  orAj  proper,  but  absolutely  necessary,  to  show  that 
the  defendant  received  money  to  the  plaintiff's  use,  and  such 
statement  should  be  understood  to  mean  what  is  said." 
[*259]  This  view  of  the  question  was  concurred  *  in  by  Justice 

Cady  in  the  still  more  recent  case  of  Wood  v.  Anthony.^ 
I  do  not  regard  it,  however,  as  materially  conflicting  with  the 
principles  above  laid  down,  and  especially  with  the  decision  in 
Mann  v.  Morewood,^  heretofore  referred  to.  A  common  count, 
such,  for  example,  as  the  count  for  money  had  and  received  by 
defendant  to  the  use  of  the  plaintiff,  cannot  be  properly  used 
except  in  those  cases  where  the  form  of  the  count  expresses  the 
fact  which  it  is  intended  to  prove  in  evidence.  As  if  A  remit 
money  to  B,  to  pay  to  C,  and  13  promise  C  to  pay  it  to  him,  C  may 
sue  B  for  so  much  money  had  and  received,  and  I  think  properly 
use  the  common  count  in  assumpsit,  as  he  might  have  done  uiuler 
the  old  form  of  pleadings.*  But  in  all  those  cases  where  the  law 
implies  a  contract,  that  is  to  say,  where  the  assumpsit  for  money 
had  and  received  to  the  plaintiff's  use  is  raised  as  a  question  of 
law,  from  certain  facts  which  are  to  be  proved  in  evidence,  then, 
under  the  Code,  these  facts  should  be  pleaded,  and  the  common 
count  ought  not  to  be  used  as  it  was  under  the  old  system.  As, 
for  example,  where  the  defendant  has  tortiously  taken  the  plain- 
tiff's goods  and  sold  them,  and  received  the  proceeds.*  So,  also, 
money  extorted  by  duress  of  the  plaintiff's  goods,  and  paid  by 
the  plaintiff  under  protest.'  So,  also,  in  the  cases  of  Enos  v. 
Woodwor'th,  Mann  v.  Morewood,  and  Lienan  v.  Lincoln,  since 

the  Code,  above  cited,'  though  the  old  common  count  might 
[*260]  have  *  been  properly  adapted  to  all  such  cases  before  the 

Code,  yet  now  it  is  no  longer  so  adapted,  and  the  facts 
raising  tlie  implied  assumpsit  must  be  stated.     And  such  I  under- 

'  9  TIow.  Pr.  78.  *  G  Ad.  and  E.  180,  2  Sandf.  PI.  and 

»  5  Sandf.  558.  Ev.,  part  2d,  pp.  358,  359. 

^  5  Ad.  and  E.  548.  *  And  see,  also,  to  the  same  effect, 

*  Ld.  Kavin.  1210,  8  Bing.  43.  Cushingham  v.  Phillips,  iu  the  N.  Y. 

Com.  Pleas,  1  Smith's  Com.  PI.  416. 


Sy.O.  II.]  THE   COMPLAIISTT.  201 

stand  to  be  the  purport  of  all  the  cases.  In  tlie  case  of  Mall  v. 
Sonthmayd,''  Justice  Hand  allowed  a  demurrer  to  a  complaint 
containing  the  common  count  for  use  and  occupation  of  lands  and 
premises,  upon  the  ground,  it  would  seem,  that  the  complaint  did 
not  state  a  cause  of  action  even  under  these  counts.  "  An  action 
for  use  and  occupation,"  he  observes,  "is  founded  upon  contract, 
express  or  implied,  and  lies  only  where  the  relation  of  landlord 
and  tenant  exists,  and  the  complaint,  therefore,  should  show  that 
this  relation  existed,  and  that  the  defendant  so  held  under  the 
plaintiff."  He  further  considers  the  question  whether  a  state- 
ment of  the  cause  of  action,  substantially  in  the  form  of  the 
common  count  in  indebitatus  assumpsit,  is  now  a  proper  mode 
of  pleading,  but  lays  down  no  positive  rule  on  the  subject, 
apart  from  the  particular  case  under  consideration.  "  These 
forms,"  he  remarks,  "  obtained  sanction  when  great  attention 
was  paid  to  logical  pleadings,  and  maintained  their  place  for 
a  long  period.  However,  I  have  some  doubt  whether,  under 
the  Code,  the  cause  of  indehtedness  should  not  be  more  di- 
rectly stated  than  in  the  old  forms.  With,  perhaps,  this 
[*261]  *exception,  I  think  it  is  competent  for  the  plaintiff,  in  a 
jproper  case,  to  use,  in  substance,  this  mode  of  stating  his 
cause  of  action."  The  same  learned  judge,  in  the  case  of  Stewart 
V.  Travis  etal.^  uses  the  following  language:  "My  OMm  impres- 
sions, how^ever,  have  been  tliat  the  common  counts,  perhaps  with 
some  variation,  are  still  good.  A  direct  allegation  of  the  cause 
of  indebtedness,  as  the  loan  of  money,  sale  of  the  goods,  or  per- 
formance of  the  work  and  labor,  etc. ,  etc.,  may  be  preferable  to 
the  former  recital  of  indebtedness;  but  certainly  it  must  be 
enough  for  the  plaintiff  to  state  facts  sufficient  to  create  a 
legal  obligation  upon  the  part  of  the  defendant,  and  such  viola- 
tion of  that  obligation  as  creates  a  cause  of  action,  and  I 
think  this  statement  may  be  according  to  the  legal  effect  of  the 
fiicis."     There   was  nothing  in  the  statute,  he  thought,  compel- 

'  15  Barb.  S.  C.  33 ;  see,  also,  Brotpro  tlie  provisions  of  the  contract,  in  form 
V.  (Jolie,  in  the  New  York  Common  or  leijal  effect,  and  allesre  tliat  he  has 
Pleas  (1  Smitli's  Com.  PI.  26G),  in  which  performed  tliem,  or,  if  not  literally  per- 
il is  held  tliat  a  plaintiff  cannot  com-  formed,  state  the  facts  which  warrant 
pl-iin  generally  for  a  balance  due  a  dcparfnre  therefrom, 
liini  for  work  n.nd  labor  on  a  si>ecia]  -  10  How.  Pr.  143. 
:o;itract;  but  that  ];e  should  set  out 

26 


202  STATEMENT   OF   FACTS.  [CH.  IV. 

ling  US  "  to  invent  new  modes  of  expressing  the  same  legal  propo- 
Bition." 

These  views  are,  doubtless,  in  the  main  con-ect.  The  "  excep- 
tions "  suggested  to  the  general  use  of  the  common  counts  are 
not,  however,  attempted  to  be  defined,  nor  is  any  rule  indicated 
as  to  what  may  be  regarded  as  a  "  proper  case  "  for  their  use.  If 
I  am  correct  in  the  views  above  expressed,  the  class  of  cases  which 
I  have  noticed,  in  which  the  assumpsit  or  contract  was  implied  in 
law,  furnish  the  exceptions  alluded  to,  and  in  which  it  would  not 
be  proper  to  use  the  common  counts. 

It  is  to  be  remarked  further,  in  respect  to  this  subject, 
[*2G2]  that,  under  the  old  forms,  an  action  of  assximpsit  *or  of 
debt  as  for  so  much  money  had  and  received  to  plaintiff's 
use,  would  lie  w^here  defendant,  not  being  a  mere  servant,  receives 
actual  money  which  belongs  to  plaintiJf  and  which  in  equity  or 
justice  ex  aequo  et  hono,  he  should  not  retain,  and  which  ought  to 
be  paid  to  the  plaintiff.'  So  debt,  as  well  as  assumjjpsit,  would  lie 
to  recover  money  paid  to  the  use  of  the  defendant,  and  the  com- 
mon count  was  proper  when  money  had  been  paid  at  the  express 
request  of  the  defendant,  and  in  some  cases  even  without  such 
request.'  And  so,  also,  deht,  as  well  as  assuonpsit  for  money  lent 
to  another,  on  his  account,  at  his  request,  and  the  common  counts, 
in  either  form  of  action,  might  be  generally  used.*  Now  it  will 
be  seen,  by  reference  to  the  forms  of  the  ordinary  counts  in  debt,* 
that  they  never  set  out  or  alleged  a  promise  to  pay.  Thus  for 
example,  the  indebitatus  count  in  debt  was  in  the  simple  form 
that  the  defendant  was  indebted  to  the  plaintiff  in  a  specitied  sum, 
stating  generally  the  cause  of  indebtedness,  or  subject-matter  of 
the  debt,  whether  for  work,  services,  or  money,  the  sale  of  real 
estate,  or  personal  property,  precisely  the  same  as  in  assumpsit, 
averrino;  that  bv  reason  of  such  indebtedness,  and  such  sum 
of  money  remaining  wholly  unpaid,  an  action  had  accrued  to 
the  plaintiff  to  have  and  demand  the  said  sum.  The  cause  of 
action  was  stated  to  have  arisen  from  the  sale  and  de- 
[*263]  livery  of  *  the  goods,  the   work   and   labor  performed, 

'  2  T.  R.  370,  3  B.  and  Ad.  354,  2        »  lb.  398  to  400. 
Sauud.  PI.  and  Ev.  part  2d,  858,  and        *  See  precedents  in  2  Chit.  PI.  385  tc 
cases  there  citod.  387. 

*  See  cases  cited  in  2  Saund.  PI.  and 
Ev.  part  2d,  pp.  402,408. 


SEC.  II.J  THE   COMPLAINT.  203 

etc.,'  and  these  were  alleged  as  tlie  subject  of  ';lie  indebtedness  witb- 
out  any  promise  to  pay.  And  the  same  form  was  used  in  debt  for 
money  lent,  for  money  paid,  money  bad  and  received,  etc.  Tlie 
promise,  however,  was  requisite  and  essential  in  the  common 
counts  in  an  action  of  assumjjsit,^  whether  such  promise  was,  in 
point  of  fact,  expressed  or  implied,  and  must  of  necessity  be 
alleged  to  turn  the  action  in  form  from  an  action  of  debt  into  an 
action  of  assumpsit.  Mr.  Justice  Selden  notices  this  distinction 
in  Dows  V.  Ilotchliiss^  and  very  properly  observes,  "  since,  then, 
all  distinction  between  actions  of  assumpsit  and  actions  of  deb't 
are  abolished,  what  necessity  can  there  be  for  inserting  this  aver- 
ment ?  I  can  see  none  whatever."  The  conclusion  arrived  at  is, 
that  the  old  common  count  in  deht,  and  not  indebitatus  assuTnpsit^ 
is  the  proper  form  of  complaint  under  the  Code;  and  it  seems  to 
me  that  this  conclusion  must  be  admitted  to  be  correct  and  logi- 
cal in  all  cases  where  it  is  not  designed  to  prove  on  the  trial  an 
express  promise,  and  where,  under  the  limitations  above  given,  the 
common  count  may  be  used  as  expressing  precisely  the  fact  by 
the  proof  of  which  it  is  intended  to  sustain  the  demand. 

It  may  further  be  added,  that  in  an  action  of  assumpsit,  it  was 
always  necessary  (except  in  the  counts  for  money  had  and  received), 

to  alles'e  that  the  debt  or  obligation  was  incurred  at  the 
[*26-l]  defendants  request.^     -'This  \\  as  not  necessary  in  an  action 

of  debt,  though  it  was  usual  to  state,  as  matter  of  form, 
that  the  sum  in  which  defendant  was  indebted  was  to  be  paid  to 
plaintiff,  "  when  he,  the. said  defendant,  should  be  thereunto  after- 
ward requested."  ^  Such  averments  cannot  be  necessary  under 
the  Code,  unless  in  that  cla?>  of  cases  where  an  actual  demand 
and  refusal  to  pay  before  suit  brought  is  necessary  to  be  proved 
to  sustain  the  action,  in  which  ease  they  must  be  averred  in  the 
complaint.  These  conclusions  1  regard  as  fully  substantiated  by 
the  case  of  Allen  v.  Pattermiiy  in  the  court  of  appeals,  hereto- 
fore cited,  which  exhibits  a  cluiin  set  out  substantially  in  tlie  oUi 
form  of  a  common  count  in  debt,  for  goods  sold  and  delivered, 
without    averring   either  a  promise,    or  liability   to  pay    Mhen 

'  Emvrii  V.  Fell,  2  Term  R.  28.  ■*  See  precedents,  2  Chit.  PI.  3fi  d  seq 

»  See  precedents,  2  cliit.  PL  m  to  108.  ^  3  Chit.  PL    385.  386,  and  note. 

2  10  Leg.  Osb.  281,  cited  in  Voorhies'  «  3  Seld.  476. 
Code,  p.  1-14. 


204  STATEMENT   OF   FACTS.  [CH.  IV. 

requested,  tliongli  eontainiiig  an  averment  of  indebtedness^  and 
that  such  sum  was  due.  The  complaint  was  held  sufficient  under 
the  Code  on  demurrer.'  [The  committee  of  a  lunatic  sent  to 
the  State  Lunatic  As3dum  is  liable  to  the  county  for  the  amount 
paid  thereat  for  the  maintenance  and  clothing  of  such  lunatic,* 
and  so  a  town  may  recover  of  a  husband  money  advanced  by 
the  overseers  of  the  poor  for  the  necessary  support  of  his  wife 
and  children  as  paupers ;  *  otherwise,  if  not  paupers,*  but  not 
beyond  the  amount  required  for  the  wife's  necessary  support  as  a 
pauper.^] 

The  general  conclusions,  therefore,  arrived  at  on  this  subject 
may  be  summed  up  as  follows  :  In  all  cases  where  the  money 
counts  heretofore  might  have  been  used,  the  plaintiff  may  still 
set  forth  his  cause  of  action  in  this  form,  if  it  expresses  the  fact 
necessary  to  he  jproved  in  order  to  fix  the  defendant's  liability  ;  as, 
for  example,  if  he  has  actually  performed  work  and  labor  for  the 

defendant,  with  his  assent,  or  has  actually  sold  and  deliv- 
[*265]  ered  him  goods  which  *liave  come  to  his  hands,  and  have 

been  used  by  him ;  or  has  lent  him  money  which  he 
refuses  to  pay,  etc.,  etc.,  leaving  out,  however,  those  legal  fictions 
of  a  request  or  jyroinise.,  which  the  law  implies  from  the  essential 
fact  of  the  sale  and  delivery,  the  labor  done,  or  the  money  lent. 
If  the  labor  has  been  done  or  the  goods  delivered,  at  the  express 
request  of  the  defendant,  it  should  be  so  alleged,  and  proved,  as 
it  will  save  the  necessity  of  alleging  and  proving  other  facts  tend- 
ing to  show  that  the  labor  was  not  gratuitous.,  or  the  goods  were 
not  delivered  without  the  knowledge  or  assent  of  the  defendant. 
So,  too,  if  there  was  an  express  promise.,  it  should  be  properly 
alleged,  and  proved ;  as,  that  the  plaintiff  worked  one  month  for 
the  defendant,  and  the  defendant  jyrowise^^  to  pay  him  a  specified 
sura,  or  that  the  plaintiff  paid  or  expended  certain  money  for 

1  The  New  York  superior  court,  in  2  ^Y'ells  v.   Vesttali,   2   Keyes,   152  ; 

the  recent  case  of  Gudlipp  v.  Whipple,  Smith   v.  Lippincoti,    49    Barb.    39b ; 

1  Abbott's  Pr.  lOG,  declares  the  prac-  Burnt  v.  Litchfield,  39  N.  Y.  377.] 

tice  of  that  court  to  be  in  accordance  *  Brmonv.  (Julnon,Qmncj{Ma.iis.)6d; 

wth  this  decision  of  the  court  of  ap-  Hanover  v.  I'urnei-, 14  M&bs.  227  ;  JS^'ew 

peals,  and    that    the   old    indebitatus  Bedford  v.  Chase,  5  Gray,  28. 

count  in  debt  for  goods  sold  is  suffi-  '  People  v.  Supervisors,  7  Hill,  171 ; 

cient.  Supcrcisors  v.  Morgan,  2  Keyes,  280, 

*  Supervisors  v.  Morgan,  2  Keyes,  2b6  ;  Monson  v.  WUliama,  6  Gray,  416. 
277. 


SEC.  II.]  THE   COMPLAINT.  20fi 

necessaries  on  account  of  the  defendant,  and  the  defendaiit  pro ui- 
ised  to  repay  him,  etc.  In  such  cases  the  promise  is  the  "  fact 
constituting  the  cause  of  action "  which  is  to  be  proved  in  evi- 
dence, and  the  labor  or  money  expended,  the  consideration  to 
support  it.  Where  tliere  is  an  express  promise  to  pay,  the  prom- 
ise itself,  having  a  suthcient  consideration  to  support  it,  is  the 
ground  of  the  action,  and  the  plaintiff  need  set  forth  no  other 
facts  to  sustain  his  action ;  but,  in  the  absence  of  an  express  prom- 
ise, every  fact  necessary  to  fix  the  liability  of  the  defendant,  and 
to  show  him  under  a  legal  obligation  to  pay  the  demand,  should 
be  stated  in  the  complaint.  Such  at  least  appears  to  me  to  be  the 
rule  indicated  by  the  Code,  and  coming  within  the  spirit  of  the 
decisions  made  under  it  which  have  been  cited. 
[*266]  ^An  account  may  be  stated  generally,  and  it  is  not 
necessary  to  set  forth  the  items  thereof  in  detail.  The 
Code,  however,  makes  provisions  for  either  party  to  obtain  a  copy 
of  the  account  of  his  adversary. '  The  plaintiff's  statement  will 
be  sufficient  if  he  specifies  the  general  nature  of  the  account,  as 
that  the  defendant  is  indebted  to  him  in  a  specified  sum  for  labor 
and  services  performed  for  the  defendant,  and  a  further  sum  for 
goods  sold  and  delivered,  and  a  certain  other  sum  for  the  use  and 
occupation  of  certain  premises,  amounting  in  the  aggregate  to  so 
much,  for  which  he  claims  judgment."  It  would  be  safe  also  to 
apply  the  rule  that  the  various  portions  of  the  account,  and 
indeed  the  whole  of  it  in  the  aggregate,  should  be  so  described 
in  the  complaint  as  to  be  capable  of  being  distinguished  from  any 
other  demand  of  like  nature,  so  that  in  a  recovery  thereon  though 
by  default,  and  without  other  proof  than  the  oath  of  the  plain tifiP 
to  the  complaint,  the  record  of  the  judgment  and  roll  may  show 
enough  to  constitute  a  bar  to  any  other  suit  to  enforce  the  same 
demand.^ 

Wlien  the  contract  is  in  loritiyig  it  was  unnecessary,  under  the 
old  practice,  to  state  that  circumstance  in  the  complaint.  Nor 
even,  if  the  action  were  upon  a  promise  within  the  statute  ot 
frauds,  was  it  necessary  to  aver  the  contract  to  be  in  writing.*     A 

'  Am.  Code,  168.  ^  See  this  subject  discussed,  ante, 

5  Beekman  v.  Plainer,  15  Barb.  550  ;  *  15  Johns.  425,  6  Hill,   33 ;  Gibbs  v 

TucJcer  v.  Rushton,  2  C.  R.  59,  7  L.  O.  JSTash,  4  Barb.  449. 

315. 


206  STATEMENT   OF   FxVCTS.  [CH.  IV. 

complaint  averring  a  promise  by  parol  will  be  supported 
[*267]  by  a  promise  in  writing/     This  was  luAd  nnder  *the  Code, 

even  as  applicable  to  a  pleading  on  the  part  of  the  defend- 
ant." Although  at  first  it  was  held  otherwise  under  the  Code  in 
an  action  founded  on  an  agreement  which  would  be  void  under 
the  statute  of  frauds  unless  in  writing  ;*■  and  also  in  an  action 
brought  upon  a  collateral  undertaking  for  the  debt  of  another.* 
[It  is  now  well  settled  that  the  complaint  need  not  allege  that  a 
contract,  which  would  be  void  unless  reduced  to  writing  and  signed, 
was  in  fact  in  writing,^  So,  where  a  statute  requires  a  three-fifth 
vote,  it  is  not  necessary  to  allege  such  a  vote.  °] 

Allegation  of  a  new  promise. —  In  an  action  on  a  promise  sup- 
ported by  the  consideration  of  a  mere  moral  obligation,  as  the 
promise  to  pay  a  debt  from  which  the  defendant  is  exonerated  by 
a  bankrupt  or  insolvent  discharge,  the  new  promise  must  be  set 
up  as  the  substantial  cause  of  action,  and  the  old  debt  dischai-ged 
under  the  act  should  be  alleged  as  the  consideration  to  support 
it.^ 

It  has  been  held  in  several  instances  in  this  State,  that  in  the 
case  of  a  new  promise  to  pay  a  debt  barred  by  the  statute  of 

limitations,  the  new  promise  does  not  create  a  new  lia- 
[*268]  hility,  because  the  statute  "^of  limitations  bars  the  remedy 

not  the  deht.^  The  old  debt,  therefore,  and  not  the  new 
promise,  should  be  set  forth  as  the  cause  of  action. 

[As  upon  a  note  given  by  an  infant,  but  which  after  ma- 
jority he  promised  to  pay,'  or  a  debt  apparently  barred  by 
the  statute  of  limitations."*  Although  the  complaint  show  on 
its  face  that  the  demand  is  apparently  barred  by  the  statute  of 
limitations  the  objection  cannot  be  taken  by  demurrer;  it  can 

'  15  Johns.  175.  Eng.  C.  L.  413  ;  Brickett  v.  Davis,  21 

^  Dewey  v.  Hoag,  15  Barb.  365  ;  Hil-  Pick.  410 ;  Waltermire  v.  Westover,  14 

Hard  V.  Austin,  17  id.  141.  N.  Y.  20,  21 ;  Winchell  v.  Bowman,  21 

3  Thiirman  v.  Stevens,  2  Duer,  609.  Barb.  448,  18  N.  Y.  558 ;  Phillips  v. 

4  LeRoy  v.  Shaw,  2  Duer,  626.  Peters,  21  Barb.  351. 

6  Limngston  v.  Smith,  14  How.  490 ;  '  Hodges  v.  Hunt,  22  Barb.  150,  152. 

Stern  v.  Drinker,  2  E.  D.  Smith,  401 :  '»  Esselstyne  v.  Weeks,  12  N.  Y.  635; 

Amhurqherv.  Marvin,  4  id.  393;  Wash-  Waltermire  v.  Westover,  14  id.  20,21  ; 

6«r?tv.>ra»Hm,  7  Abb.8,28Barb.27.  Butler  v.  Mason,  5  Abb.  40,16  How 

«  Wolfe  V.  Supervisors,  11  Abb.  270,  546  :  Sands  v.  St.  John,  36  Barb.  628, 

19  How.  370.  23  How.  140,  affirmed  in  rourt  of  ap- 

'  14  Johns.  148,  1  Hill,535,  4  Barb.  S.  peals,  Oct.  1865,  29  How.  574 ;  WivcheU 

C.  174.  V.  Hicks,  18  N.  Y.  560 ;  Clark  v.  Atid?^. 

«  Higgins  v.  Scott,  2  Barn.  &  Aid.  22  son,  2  E.  D.  Smith,  112. 


SEC.  II.]  THE   COMPLAINT.  207 

only  be  raised  by  answer.'  If,  however,  tlie  debtor,  for  a  nominal 
sum,  has  been  released,  and  afterward  promise  to  pay  the  amount 
unpaid,  the  action  should  be  upon  the  new  promise  alleging  the 
original  debt  as  the  consideration ;  ^  otherwise,  however,  if  an 
agreement  be  made  to  compromise  on  a  condition  wdiicli  failed  for 
want  of  agreement  of  all  the  creditors.*  So  where  an  attorney, 
by  reason  of  the  statute  of  limitations,  could  not  collect  his  costs 
of  his  client,  but  an  execution  was  issued  by  the  client,  and  the 
judgment  collected,  it  was  held  the  attorney  had  a  lien  for  his 
costs  upon  the  amount  collected,  and  the  sheriff  was  directed  to 
pay  the  costs  to  the  attorney  to  whom  they  equitably  belonged.* 
The  Revised  Statutes  created  a  presumption  of  payment  simply. 
The  Code  is  not  analogous  to  those  provisions.^] 
[*269]  *  In  indicating  generally  the  rules  of  pleading  prescribed 
by  the  Code,  it  will  not  be  necessary,  nor  would  it  be 
practicable,  within  the  limits  of  this  work,  to  enter  into  a  full  and 
particular  discussion  of  tlie  former  requisites  and  qualities  of 
pleading.  The  object  of  the  present  chapter  is  mainly  to  inquire 
what  changes  the  Code  has  introduced  into  the  former  mode  of 
stating  the  facts  w^hich  constitute  the  plaintiff  ^s  cause  of  action. 

Having  considered  the  subject  generally,  with  reference  to  the 
statement  of  necessary  facts  in  an  action  on  contract,  I  shall,  with- 
out dwelling  further  on  these  matters,  proceed  to  consider  the 
mode  of  stating  facts  in  other  actions,  first  briefly  noticing  one  or 
two  particular  provisions  which  the  Code  has  made  on  the  sub- 
ject of  pleading.  And  first : 
[*2T0]  "^Private  statute.  —  A  change  is  made  by  the  Code  in  the 
manner  of  pleading  a  private  statute.  At  common  law '  the 
court  did  not  take  ofiicial  notice  of  a  pi-ivate  statute,  and,  therefore, 
when  a  party  had  occasion  to  rely  on  an  act  of  this  description 
he  was  required  to  set  forth  such  parts  of  it  as  were  material.'' 

By  the  Code,  however, 

1  Sands  v.  8t.  John,  36  Barb.  628,  23        ^  Burgin  v.  Ireland,  14  N.  T.  322. 
How.  140,  affirmed  in  court  of  appeals        ^  Higgins  v.  Scott  2  Barn.  &  Adol.  22 
Oct.  I860,  29  How.  574  ;  Lefferts  v.  IM-    E.  C.  L.  413. 

kster,  10  id.  383  ;  Humphrey  v.  Per-  ^  New  York  Life  Im  Co.  v.  Covert,  i 

sons,  23  Barb.  314 ;  Fogal  v.  Pirro,  17  Abb.  N.  S.  171. 

Abb.  114;  Wagoner  y.Jermain,  3  Den.  ^  1  Bl.  Com.  85. 

306.  ■<  Steph.  PI.  347. 

2  Sterna  v.  Tappan,  5  Duer,  294,  299, 
300. 


208  STATEMEJSTT   OF   FACTS.  [CII.  lY. 

"  In  pleading  a  private  statute,  or  a  right  derived  tlierefrom,  it 
shall  be  sufficient  to  refer  to  such  statute  by  its  title  and  the  day 
of  its  passage,  and  the  court  shall  thereupon  take  judicial  notice 
thereof." ' 

[If  a  private  statute  contain  a  section  of  a  public  and  general 
nature,  the  courts  will  take  judicial  notice  of  it."  The  statute 
laws  of  another  State  must  be  pleaded  in  the  same  manner  as  other 
facts,  and  a  general  averment  that  by  the  laws  of  that  State  a 
certain  conclusion  results,  is  insufficient,'] 

It  is  sufficient,  in  a  pleading,  to  aver  generally  that  a  contract 
sought  to  be  enforced  is  in  violation  of  some  municipal  ordinance 
or  enactment  founded  upon  a  statute.  It  is  not  necessary  to  plead 
the  statute  specially.*  In  declaring  now  for  offenses  against  a  penal 
statute,  such  as  the  excise  laws,  gaming,  etc.,  the  Code,  it  is  said, 
has  abrogated  the  statute  which  authorized  a  declaration  to  allege 
the  words  of,  and  refer  to,  the  statute.  The  plaintiff  must  now, 
as  pre\aous  to  the  Revised  Statutes,  state  the  special  matter  upon 
which  the  action  arises.^ 

J'udg'tnent.  —  In  pleading  the  judgment  of  an  inferior  court  of 
limited  or  special  jurisdiction,  the  law  in  this  State,  down  to  the 
time  of  the  passage  of  the  Code,  was,  that  a  general  averment  of 
jurisdiction  was  not  sufficient,  but  the  specific  facts  conferring 
the  jurisdiction  must  be  stated.'  [Even  that  the  cause  of  action 
arose  within  the  jurisdiction  of  the  court.'']  The  Code  has 
[*271]  made  a  change  in  this  respect  similar  to  that  *  made  in  the 
manner  "of  pleading  the  performance  of  a  condition  pre 
cedent.  The  judgment  or  determination  of  such  court  may 
now  be  generally  stated  "to  have  been  duly  given  or  made," 
and,  if  the  allegation  be  controverted,  the  party  pleading  (as  on 
the  perfomiance  of  conditions  precedent)  is  bound  to  establish  on 
the  trial  the  facts  conferring  jurisdiction.*  If  not  controverted 
of  course  the  jurisdiction  is  established  for  the  purposes  of  the 
trial  without  proof.     [This  section  does  not  apply  to  foreign  judg- 

1  Code,  §  163.  *  Turner  v.  Roby  et  al,  3  Comst.  193 ; 

2  Brctz  V.  Mayor,  4  Abb.  N.  S.  258, 34  Barnes  v.  HarrLt,  3  Barb.  S.  C.  603  [4 
How.  130.  N.  Y.  3741 ;  Foster  v.  Hazcn,  12  Barb. 

■3  Throot  V.  Eatch,  3  Abb.  25 ;  Phin-  547. 

ney  v.  Phinney,  17  How.  197.  '  Read  v.  Pope,  1  Cromp.,  Mees.  & 

*  Bflmaa  v.  Tug  not,  5  Sandf.  153.  Rose.  301. 

'  Morehoxise  et  al.  v.  Grilly,  8  How.  ^  Code,  §  161. 
481 ;  Abbott  v.  New  York,  etc.,  13  Abb. 
N.  S.  465. 


SEC.  11.]  THE   COMPLAINT.  209 

ments  and  in  pleading  them  facts  showing  jnnsdiction  of  the 
;:  n  and  the  subject-matter  n.ust  still  be  pleaded.'  The  pleader 
must  allege  substantially,  in  the  language  ot  the  Code,  that  the 
iudcnnent  was  "  duly  given  or  made."  ^J  ,       ,,       ,  .         . 

^    !n  ca.es  of  lihel  and  slander,  the  Code  has  also  altered  the  ru  e 
of  pleading  in  this  class  of  cases.     It  is  not  now  necessary  to 
allege  in  the  complaint  any  extrinsic  fact  for  the  purpose  o   show- 
S-  application  to  the  plaintiff  of  the  defamatory  mat  er  o^ 
of  which  the  cause  of  action  arose;  but  it  is  sufficient  to  state 
generally  that  the  same  was  published  or  «P«"7.^7/ .  ^f^ 
plaintiff,  and  if  such  allegation  be  controverted,  ^^^P"  ^^^^^^ 
be  bound  to  establish  on  the  trial  that  it  was  so  published  or  spo- 
ken '     This  does  not,  however,  render  it  unnecessary  to  aver  in 
the  complaint  the  meaning  of  the  words  themselves  when  such 
meaning  become,  essential  to  the  cause  of  action.^     ^^7^7' t' 
example,  the  words  standing  alone  do  not,  as  a  matter  of  law 
impute  a  criminal  offense,  there  should  be  an  averment  showmg 
that  the  words  were  used  in  a  sense  intending  to  impute  such  an 
offense.     [It  is  not  slander,  jp^r  se,  to  charge  one  with  a  military 
offense,  as  desertion.^]     Such  averments  are  necessary  to 
r*272]  sustain  the  action  where  *words  are  ambiguous  or  uncer- 
tain in  tlieir  meaning.^     And  when  words  are  spoken  m  a 
foreicm  language  it  must  be  averred  that  the  hearers  understood  such 
language.'     [The  words  should  be  set  forth  in  the  language  m 
which  they  were  published,  accompanied  by  an  averment  of  their 
meaning  in  English.^     But  omitting  to  set  forth  the  words  m  the 
language  in  which  they  were  uttered  may  be  remedied  by  amend- 
ment •]"    The  Code,  it  seems,  has  changed  the  common-law  rule 
of  pleading  in  actions  of  slander  in  but  one  particular;  that  is, 

refer  to  McLaurjhlin  v.  mdwls,  U  Abb.  «  6  How.  ^^  J  -^      ^3  p,,^,  339  33 

244,  a  General  Term  case  3.0    More  v. ^           jiaym.ond,  3  Abb. 

*  Hunt  V.  Butcher,   13   How^  538  ;  gow.  1  <7    i-jw«'-      ^  -^       ^  j^.  275. 

People  v.  Walker,  2  Abb.  421  ■  FM  v.  N  S.  |^3  ,  W^ J^  ^  Eliz.SGS. 

cJmis.sioners,  23   Wend    135 ;   7?.^-  l^^J^^^%^/mz,    3    Sandf.    734. 

land  V.  Phnlen,  1  Bosw.  44 ;  Garter  v.  ^  ' -^^f^^^^  Jbel  and  Slander,  i^  330. 

3  Code.  ^  164;   see  16    Wend.  9,  3     ^^^.f^:^^.  -^,,,8  Sandf   73^^ 
Cotnst.  177.  P^^^.g  Libel  and  Slander,  §  3d0. 

27 


210  STATEMENT   OF  FACTS.  [CH.  IV. 

although  it  may  be  imcertain  to  whom  the  words  were  intended 
to  apply,  it  is  no  longer  necessary  to  insert  in  the  complaint  any 
averments  showing  they  were  intended  to  apply  to  the  plaintiff; 
in  other  respects,  the  rules  formerly  prevailing  remain  unchanged.* 
In  the  case  of  Fry  v.  Bennett^  the  sufficiency  of  a  complaint 
in  a  case  of  libel  was  considered  with  reference  to  the  change 
effected  by  section  164  of  the  Code,  and  the  above  decision  in 
Pike  V.  Yan  Wormer  concurred  in.  It  was  said  by  the  court, 
that  where  the  meaning  of  the  words  is  so  ambiguous  that  extrin- 
sic facts  are  necessary  to  be  proved  to  show  them  to  be  actionable 
at  all,  the  necessity  of  stating  those  facts  by  an  explicit  averment 
is  precisely  the  same  as  it  has  always  been,  and  that  this  section 
of  the  Code  does  not  apply  to  such  a  case.  Such  facts  must  be 
proved  in  order  to  entitle  the  plaintiff  to  recover,^  and  are  mate- 
rial and  issuable  in  their  nature.  [The  object  of  an  innuendo  is 
simply  to  explain  the  application  of  the  words  by  connecting  them 
with  the  extrinsic  circumstances  set  out  by  way  of  inducement.* 
An  innuendo  cannot  enlarge  the  meaning  of  the  words  spoken 
beyond  the  averment  of  the  intention  by  which  the  speaking  of 
the  words  is  introduced,  where  the  words  themselves  are  ambigu- 
ous, and  do  not  necessarily  impute  crime.*  A  colloquium,  that  is, 
a  statement  of  the  extrinsic  facts  which  enables  the  court  to  see 
that  the  facts  alleged  justify  the  innuendo,  is  necessary.*  A  collo- 
quium shows  that  the  words  were  spoken  in  reference  to  the  mat- 
ter of  the  averment.  An  innuendo  is  explanatory  of  the  defend- 
ant's meaning  by  reference  to  antecedent  matters,  set  out  by  way 
of  inducement.'  To  illustrate,  if  a  libel  charges  that  the  conduc- 
tor of  a  certain  train  of  cars  on  a  certain  railroad,  without  naming 
the  conductor,  used  abusive  and  insulting  language  to  a  passenger, 
the  complaint  should,  by  way  of  inducement,  or  as  is  sometimes 
but  improperly  said  colloquium.,  allege  that  the  plaintiff  was  on 
the  day  named  a  conductor  of  a  certain  train  of  cars  on  the  rail- 

'  5  How.  Pr.  1,6  id.  99.  =  Weed  v.  BibbMs,  32  Barb.  315,  Wil- 

»  1  C.  R.  N.  S.  238,  5  Sandf .  54.  liams's  note  to  Thomas  v.  Axworth,  Ho- 

'  Kinney  V.  Nmh,  3  Comst.  177.  bart,  3. 

*  Blnisdell  v.  Raymond,  4  Abb.  446,  *  Parker  v.  Raymond,  8  Abb  N.  S. 

Townsend's  Slander  and  Libel,  §§  129,  343 ;  More  v.  Bennett,  48  Barb.  229,  3J 

335-344.     The  reader  should  carefully  How.  120. 

examine  Mr.  Townsend's  able  and  ex-  "'  Townsend's  Libel  and  Slander,  ^§ 

haustive    work,    before    preparina:   a  129,310, 823,  Williams's  note  to  TVtojnffiS 

pleading  in  slander  or  libel.  v.  Axworth,  Hobart,  3. 


SEC.  II.]  THE   COMPLAINT.  211 

ro:i  J  (naming  it),  on  whicli  were  certain  passengers,  and  that  tlio 
defendant  published  of  and  concerning  the  plaintiff,  as  such  con- 
ductor, the  words  following,  that  is  to  saj :  "  He  turned  to  one  of 
the  passengers  and  said,  "  damn  you,  do  yon  mean  to  get  off?  I'll 
go  on  if  you  don't  step  quick."  The  same  statement  with  innu- 
endoes would  be  as  follows :  "  He  "  (the  plaintiffmeaning)  "  turned 
to  one  of  the  passengers"  (meaning  one  of  the  passengers  upon 
said  train  of  cars),  and  said  (meaning  that  plaintiif  said  to  such 
passenger),  "damn  you,  do  you"  (meaning  the  aforesaid  passen- 
ger), "mean  to  get  off?"  (meaning  oft"  of  the  car  on  said  train  on 
which  such  passenger  was),  "I'll"  (meaning  I,  the  plaintiiT,  will) 
"  go  on  if  you  don't  step  quick  "  (meaning  that  if  the  said  passen- 
ger did  not  get  out  of  and  off  of  the  car  in  which  such  passenger 
was  quickly,  he,  the  plaintiff,  would  start  the  said  train  of  cars 
and  not  allow  such  passenger  to  get  out  of  or  off  of  said  car.)] 
But  these  allegations  only  are  to  be  deemed  material  in  the  sense 
of  the  Code  which  the  plaintiff  must  jy^ove^in  order  to  maintain 

his  action.  Hence  it  was  said  in  the  same  case,  that  mat- 
[*2T3]  ters  which  relate  to  the  motives  and  intent  of  the  *defendant 

in  publishing  the  libel  were  not  necessary  to  be  inserted 
in  the  complaint,  because  not  necessary  to  be  proved  to  entitle  the 
plaintiff  to  recover;  and  although  such  allegations  might  not  be 
liable  to  rejection  as  irrelevant,  yet  they  might  be  justly  treated 
as  redundant  and  superfluous.  A  mere  innuendo  cannot  be 
traversed  ;  such  a  traverse  raises  no  material  issue.  But  matter 
of  indiiGement^  when  necessary  to  be  proved,  may  be  traversed 
by  the  answer,  and  such  traverse  will  raise  a  material  issue. 

It  is  also  said,  in  the  note  to  this  case,  that  malice  is  the  gist  of 
the  action  for  libel ;  and  prior  to  the  Code  the  declaration  had  to 
allege  malice,  either  directly  or  by  some  equivalent  averment,  in 
which  case  the  defendant's  plea  of  not  guilty  put  the  malice  in 
issue.  It  is  said,  however,*  since  the  Code,  that  it  is  not  necessary 
to  aver  express  malice,  or  want  of  probable  cause,  in  a  complaint 
for  libel.  The  point  relates  rather  to  the  omos  and  measure  of 
proof  than  the  form  of  the  pleadings.  If,  on  the  trial,  it  appears 
that  the  publication  was  made  on  a  just  occasion,  the  burden  will 

'  TovsTaseud's  Libel  and  Slander,  §  ^  Purely  v.  Carpenter,  6  How.  Pr. 
313  36L 


212  STATEMENT    OF    FACTS.  [CII.  IV. 

thereby  be  thrown  on  the  plaintifi'  of  proving  express  malice,  and 
then  tlie  qnestion  of  probable  cause  may  be  inquired  into.*  [But 
the  publisher  of  a  newspaper  is  not  legally  liable  for  malice  be- 
cause a  sub-editor  refused  to  publish  a  retraction."]  But,  though 
a  mere  innuendo  is  not  traversable,  yet  it  may  become  a  material 
part  of  the  complaint,  and  the  plaintiff  is  bound  by  it,  the  same  as 
by  any  other  allegation,  as  in  the  case  of  Butler  y.  Wood^  wdiere 
an  innuendo  was  held  to  have  destroyed  entirely  a  cause  of  action 

which,  without  such  innuendo,  would  have  been  good. 
[-274]       *  A  complaint  for  slander  is  defective,  if  it  does  not  state 

that  the  words  were  spoken  in  the  presence  or  hearing  of 
some  person,*  but  the  word  puhlished^  in  the  complaint,  imports 
that  the  words  were  so  spoken.'  And  it  is  necessary  that  the  pre- 
cise words  used  should  be  set  forth.*  The  plaintiff  must  state 
distinctly  what  the  charge  is,  so  that  the  defendant  may  know  for 
what  he  is  sued.  Actionable  words  not  alleged  in  the  complaint 
are  not  admissible  in  evidence^  [if  defendant  objects  thereto, 
for  that  reason,  or  move,  at  the  close  of  plaintiff's  case,  to  strike 
them  out,*  even  to  prove  malice  ;*  unless  all  right  to  recover 
therein  is  barred  by  the  statute  of  limitations,  and  the  words  relate 
to  the  same  charge  or  one  of  a  similar  character."]  Time  and 
place  are  in  general  immaterial,  and  need  not  be  proved  as  laid  in 
the  complaint,  and,  it  seems,  under  the  Code,  need  not  in  general 
be  alleged,''  except  where  they  become  matter  of  substance.  If 
not  alleged,  the  court  can,  in  a  necessary  or  proper  case,  order  the 
pleadings  to  be  made  definite  and  certain  by  amendment ;  at  all 
events  it  was  so  held,  in  an  action  for  slander,  since  the  Code." 
Nor  will  a  demurrer  lie,  as  it  was  said  in  Gray  v,  JVellis,^^  to  a 

'  Per  Barctjlo,  J.  Term,  4th  Dist.,  1869.     This  point  was 

2  Edmll  V.  Brooks,  33  How.  191.  decided  by  the  Commission  of  Appeals, 

3  10  How.  Pr.  222.  I  believe,  in  December,  1869,   in   an 

*  Anonymous,  3  How.  406.  unreported  case  arising  in  Delaware 
^1  C.  R.  134  [Townsend's  Libel,  ^324].     county,   wherein    George    Beclier,   of 

*  7  L.  0.  316  [Towusend's  Libel  and    Binghamton,    and  E.  D.  Wagner,   of 
Slander,  i^  329.]  Delhi,  were  the  attorneys.     See,  also, 

'  GrrtT/'v.  Nellis,  6  How.  Pr.  290,  and  Townsend's  Libel  and  Slander,  ^§  390, 

cases  cited.  392. 

*  Kern  v.  Toumley,  51  Barb.  386.  "  Though  otherwise  under  the  old 
'  Howard  v.   Sexton,  4   N.  Y.   159  ;  system.     See  1  Chitty's  PI.     ,  4  Denio, 

Rvndell  v.  Butler,  7  Barb.  262;  Keen^  80  [Townsend's  Libel  and  Slander,  gg 

holts  V.  Becker.  3  Denio,  349 ;   Town-  326,  327]. 

Bend's  Libel  and  Slander,  g§  390,  392.  ''^  7  Leg.  Obs.  316. 

i»  Van    Camp  v.  Miller,  MS.,  Gen.  >»  g  How.  Pr.  290. 


SEC.  II.]  THE  COMPLAINT.  213 

complaint  which  alleges  that  the  defendant,  on  divers  days  and 
times,  between  that  day  and  the  commencement  of  the  suit,  spoke 
the  words  complained  of.  [By  statute  in  New  York  (Laws  1871, 
vol.  1,  p.  448,  March  19, 1871),  it  is  provided  that  an  action  may  he 
maintained  by  a  female,  whether  married  or  single,  to  recover 
damages  for  words  hereafter  spoken,  imputing  unchastity  to  her, 
and  it  shall  not  be  necessary  to  allege  or  prove  special  damages  in 
order  to  maintain  such  action.  In  such  actions  a  married  woman 
may  sue  alone,  and  any  recovery  therein  shall  be  her  sole  and 
separate  property.] 

In  other  actions  for  wrong.  —  The  rule  as  to  what  facts  are 
necessary  to  be  stated  in  other  actions  of  tort  is  entirely  similar. 

The  plaintiff  should  set  forth  expressly,  or  by  necessary 
[*275]  implication,  every  *  thing  which,  if  denied,  he  is  bound  in 

the  firsj^  instance  to  prove,  in  order  to  maintain  his  action. 
Thus,  in  what  was  formerly  an  action  of  trover,  that  is,  a  suit  for 
damages  for  the  conversion  of  personal  property,  the  old  requis- 
ites of  the  declaration  as  to  matters  of  substance  are  still  preserved. 
The  complaint  should  state  that  the  plaintiff  was  possessed  of  the 
goods  as  of  his  own  property,  and  a  general  allegation  of  owner- 
ship, it  has  been  held,  is  sufficient  in  a  complaint  under  the  Code.' 
If  he  has  never  had  actual  possession  of  the  goods  he  need  not 
allege  that  he  was  possessed,  as  where  goods  of  the  testator  are 
taken  and  converted  after  his  death,  and  before  the  executor  has 
obtained  possession  of  them,  he  may  say  that  the  testator  was 
possessed  of  them,  alleging  his  own  appointment  as  executor,  etc., 
and  aver  that  the  defendant,  after  the  death  of  the  testator,  con- 
verted them."  So,  too,  assignees  of  a  bankrupt  who  have  never 
had  actual  possession  may  declare  on  the  possession  of  the  bank- 
rupt. If  the  plaintiff  has  not  the  absolute  ownership  of  the 
chattels,  but  a  mere  special  property  in  them,  with  the  right  of 
possession,  as  a  bailee,  etc.,  I  suppose,  under  the  Code,  he  should 
properly  set  out  the  facts  showing  his  special  property.  The 
chattels  should  be  described  with  such  certainty  that  the  jury  may 
know  what  is  meant,"  though  the  same  particularity  is  perhaps 
not  required  as  in  an  action  for  the  recovery  of  chattels  in  specie. 

-  Heine  v.  Anderson,  2  Duer,  30H.  ^  i^_  1140. 

'  Saiind.  PI.  and  Ev.,  Part  3,  p.  1139. 


214  STATEMENT   OF   FACTS.  [OH.  IV. 

[An  action  lies,  by  an  employer,  against  one  to  whom  liis  clerk 

has  paid  his  money,  lost  at  gambling.']  Under  the  old 
[*276]  *rule  of  pleading,  also,  it  was  required  that  the  chattels 

mnst  be  stated  to  be  of  some  value.  This  is  still  necessary 
under  the  Code ;  and  the  same  may  be  said  in  regard  to  the  time 
of  the  conversion,  although  it  may  be  laid  under  a  videlicet.  In 
practice  it  will  be  found  convenient  to  state  both  day  and  place, 
in  order  to  avoid  any  objection  on  the  score  of  the  complaint  not 
being  sufficiently  definite  and  certain.  In  regard  to  the  alleged 
loss  of  the  goods  by  the  plaintiff,  and  the  finding  by  the  defend- 
ant, these  were  not  only  matters  of  form  used  to  characterize  the 
action,  but  Qhsohxia  fictions  which  should  not  be  allowed  to  appear 
in  any  good  pleading  under  the  Code- 
In  respect  to  a  demand  for  the  goods,  and  refusal  of  the  defend- 
ant to  deHver  the  same,  these  should  be  alleged  whenever  proof 
of  them  is  necessary  to  sustain  the  action.  Thus,  in  an  action 
against  a  bailee  who  has  come  lawfully  into  possession  of  per- 
sonal property,  the  complaint  should  aver  a  demand  of  the  goods 
and  refusal,  or  allege  that  the  defendant  has  sold  or  destroyed  the 
property,  which  is  equivalent  to  a  wrongful  taking.*  And  gener- 
ally, whenever  a  demand  of  the  goods  is  necessary  to  show  the 
plaintiff's  right  of  action,  it  must  be  alleged ;  and  if  not  alleged 
it  cannot  be  proved  on  the  trial.^  If  the  taking  itself  has  been 
wrongful,  or  the  goods  have  been  sold  or  destroyed,  no  averment 

of  demand  and  refusal  need  be  made,  inasmuch  as  it  is 
[*27T]  not  necessary  *to  be  proved  on  the  trial.     A  complaint  in 

an  action  for  damages,  for  the  conversion  of  chattels  under 
the  Code,  to  be  good  should  show  that  the  plaintiff  was  the 
lawful  owner,  or  was  in  lawful  possession  of  the  goods,  specifying 
them,  with  the  right  of  possession,  that  they  subsequently  came 
into  defendant's  possession  according  to  the  fact,  and  that  his  right 
to  their  possession,  if  he  ever  had  such  right,  has  ceased,  with  a 
demand  and  refusal,  or,  if  he  took  or  converted  them  wrongfully, 
then  without  such  demand  and  refusal.  It  should  be  rem.arked, 
further,  that  where  the  plaintiff  has  not  an  absolute^  but  merely 
a  special  i)roj>eriy  in  the  chattels,  with  the  right  of  possession,  the 

^  (Jaussidiere  v.  Beers,  2  Keyes,  198.        ^  Bristol  v.  Rens.  and  Sar.  E.  R.  Co., 
"  3  Wend.  406, 10  id.  389.  9  Barb.  159. 


SEC.  II.]  THE   COMPLAINT.  215 

complaint  should  state  concisely  the  facts,  which  e&tablish,  as  a 
conclusion  of  law,  the  plaintiff's  right  to  bring  snit,  in  a  similar 
manner  as  in  the  old  action  on  the  case  against  carriers,  innkeepers 
and  othei's,  where  the  defendant's  liability  was  founded  on  an  ohl'l- 
gallon  of  law,  in  which  cases  the  declaration  was  made  to  contain 
a  concise  statement  of  the  circumstances  out  of  which  the  partic- 
ular duty  or  obligation  arose.* 

In  an  action  to  recover  jyersonal  property,  which  is  a  substi- 
tute for  the  old  action  of  replevin  before  the  Code,  similar  rules 
may  apply  in  all  respects.  The  action,  however,  being  partly  in 
rem,  the  particular  property  claimed  should  be  more  clearly  and 
specifically  described  in  the  complaint  than  in  actions 
[*27S]  *  claiming  damages  for  the  conversion  merely.  .  The  Re- 
vised Statutes,  extending  the  remedy  by  replevin*  to  a 
new  class  of  cases,  namely,  the  wrongful  detention  of  chattels, 
provide  that  whenever  any  goods  and  chattels  shall  have  been 
wrongfully  distrained,  or  otherwise  wrongfully  taken,  or  shall  be 
wrongfully  detained,  an  action  of  replevin  would  lie  for  the  recov- 
ery thereof,  with  damages,  etc.,  except  in  cases  specifically  men- 
tioned in  the  statute.'*  The  statute  also  prescribed  the  form  of 
the  pleadings  in  certain  cases,  but  these  , forms  are  superseded 
by  the  provisions  of  the  Code.  In  the  recent  case  of  Ker- 
rigan V.  Hay  and  others,^  it  was  held  that  it  was  not  neces- 
sary that  the  complaint  should  correspond  with  the  affidavit,  on 
which  is  founded  the  requisition  to  the  sheriff,  as  to  the  number 
and  value  of  the  articles.  It  is  sufficient  to  describe  in  the  com- 
plaint and  claim  only  the  property  in  possession  of  the  defendant? 
when  the  action  is  commenced.  Under  the  old  system  there  was 
a  distinction  between  replevin  in  the  cepit,  and  replevin  in  the 
detinet.  Replevin  in  the  cepit  was  held  to  lie,  at  common  law, 
where  there  had  been  a  tortious  taking,  or  where  an  action  of 
trespass  might  have  been  brought ;  and  in  such  case  our  supreme 
court  held  that  the  action  would  lie  either  in  the  cepit  or  detinet.* 
If  there  had  been  no  tortious  taking,  and  the  defendant  refused 
to  deliver  the  goods  on  demand,  either  trover,  or  replevin  in 

1  1  Chit.  PI.  137,  1  Saund.  313,  c.  n.  2,        »  10  How.  Pr.  218. 

12  East,  89,  and  see  precedents  in  Cliit.        ■•  Gtinvmings  v.    Vorce,  3   Hill,  283 
PI.  Bkonson,  J.,  dissenting. 

2  2  R.  S.  522,  §  1,  2  Edm.  St.  540. 


216  STATEMENT   OF   FACTS.  [CH.  IV. 

[*279J  the  detinet,  might  be  maintained/  *  In  all  cases,  how- 
ever, it  must  be  shown  in  the  declaration  that  the  plaintiif 
has  either  a  general  or  special  property  in  the  goods.  An  allega- 
tion that  he  is  entitled  to  the  possession  is  insufficient.  This  was 
60  held  in  the  case  of  Pattison  et  al.  v.  Adams^  which  contains 
a  full  review  of  the  authorities  on  the  subject.  The  following 
remarks  by  Beardsley,  J.,  in  respect  to  the  pleading  in  such  an 
action,  I  apprehend,  are  fully  applicable  to  pleadings  in  this  class 
of  actions  under  the  Code.  "  The  declaration  does  not  allege 
that  the  goods  in  question  belonged  to  the  ^^laintifFs,  nor  any  thing 
to  that  effect,  but  simply  that  they  were  goods  and  chattels  of 
which  the  plaintiffs  were  entitled  to  the  possession.  Pleading  is  a 
statement  of  facts,  and  not  of  the  eA^dence  of  facts,'  And  if  it 
were  true  that  one  who  is  entitled  to  the  possession  of  chattels 
must  necessarily  have  a  general  or  special  property  therein,  still, 
in  pleading  his  right,  the  fact,  and  not  the  evidence,  should  be 
alleged.  This  is  decisive  of  the  question  before  us,  and  I  choose 
to  dispose  of  it  on  this  single  ground."  But  in  these  classes  of 
cases  a  general  allegation  that  plaintiff  is  the  owner  of  the  prop- 
erty is  sufficient  under  the  Code,  without  setting  forth  the  plain- 
tiff''s  title,  as  in  Heine  v.  Anderson*  in  the  New  York  superior 
court. 

The  case  of  Yogel  v.  Baljcock^  at  the  New  York  general  term, 
contains  the  form  of  a  complaint  in  actions  to  recover 
[*2S0]  specific  personal  property,  "^  and  discusses  the  question  as 
to  what  allegations  are  necessary  to  support  such  a  claim. 
It  was  held  in  that  case,  on  denniri'er,  that  a  complaint  was  good 
which  alleged  the  conversion  and  detention  of  plaintiff's  property, 
and  prayed  for  a  specific  delivery  and  damages ;  and  that  the  plain- 
tiff had  a  right  to  waive  the  immediate  delivery  of  the  chattel, 
and  await  its  restitution  until  he  obtained  judgment. 

As  to  who  should  be  proper  parties  defendant  in  an  action  to 
recover  personal  property,  the  reader  is  referred  to  what  was  said 
on  a  preceding  page:  Ante,  Chap.  2,  Sec.  111. 

Actions  for  wrongs  not  committed  with  force,  and  injuries  to 

»  See  Barrett  v.  Warren,  3  Hill,  348,  ^  See  Allen  v.  Patterson,  3  Said.  478. 

and  cases  there  cited.  **  2  Duer,  318. 

2  7  Hill.  l-:0  ;   [Bond  v.  Mitchell,  3  »  1  Abb.  Pr.  176. 
Barb.  3041. 


SEC.  II.]  THE   COMPLAITTT.  217 

the  relative  rights  of  persons.  —  These  formed,  perhaps,  the  most 
extensive  class  of  actions  of  tort,  and  were  classified  before  the 
Code  as  actions  on  the  case.  In  their  most  comprehensive  signifi- 
cation thej  were  held  to  include  actions  of  assumpsit,  as  well  as 
actions  arising  on  tort,  but  were  generally  understood  as  meaning 
actions  of  tort  arising  out  of  the  special  circumstances  of  the  case.* 
They  included  all  actions  to  recover  damages  for  torts  not  com- 
mitted with  force,  actual  or  implied,  where  the  matter  aflected  was 
not  tangible,  or  the  injury  was  not  immediate,  but  consequential, 
as  cases  of  false  representation,  of  breach  of  duty,  negligence, 
etc. ;  also  injuries  to  the  relative  rights  of  persons,  as  for  enticing 
or  harboring  apprentices  and  servants,  debauching  daughters  and 
servants,  etc. ;  or  for  injuries  to  property  or  the  person  where  the 

interest  is  only  in  reversion,  or  the  injury  is  not  imme- 
[^281]  diate,  but  consequential,  "^and  trespass,  would  not  lie.' 

In  these  and  a  great  variety  of  other  cases  this  form  of 
action  was  used,  and,  indeed,  was  a  favorite  form  of  pleading 
under  the  old  system,  and  was  adopted  in  preference  to  any  other, 
when  the  plaintiff  had  a  concurrent  remedy  for  the  same  injury. 
It  was  called  an  action  on  the  ease,  because  the  obligation  of  the 
defendant,  and  his  liability  to  respond  to  the  plaintiff  in  damages, 
arose  out  of  the  special  circumstances  of  the  case ;  and  it  is  worthy 
of  particular  notice  in  this  place,  because  the  common-law  declar- 
ation in  an  action  on  the  case  comes  nearer  to  the  complaint 
authorized  by  the  Code  than  any  other  species  or  form  of  pleading 
of  the  old  system.  .Indeed,  it  has  been  said,  since  the  Code,  in 
more  than  one  instance,  that  every  action  is  now  an  action  on  the 
case.'  And  it  must  be  admitted,  so  far  as  the  frame  and  structure 
of  a  declaration  in  ease  is  concerned,  rejecting,  of  course,  the  more 
formal  parts,  some  superfluity  of  expression,  some  useless  repeti- 
tion, and  no  little  technical  formality  of  statement,  as  not  belong- 
ing to  the  essentials  of  pleading,  that  the  old  precedents  in  case 
will  answer  very  well  as  complaints  in  the  same  class  of  actions 
under  the  Code.*  Let  us  see  what  the  declaration  in  case  was 
required  to  contain,  and  how  it  compares  with  a  complaint  under 
the  Code. 

1  1  Chit.  PI.  123.  »  See  ante,  marg.  p.  77. 

2  Saund,  PI.  and  Ev.  715  to  735.  •*  See  precedents  in  3  Chit.  PI. 

28 


218  STATEMENT   OF  FACTS.  [CH.  IV. 

[*2S2]       *  In  actions  on  the  case  as  it  is  laid  down  in  the  books, 
the  declaration  should  contain : 

1st.  By  way  of  inducement,  the  circumstances  under  which  the 
injury  was  committed. 

2d.  The  injury  itself. 

And,  lastly,  the  consequential  damages  resulting  therefrom  to 
the  plaintifl'. 

These  are  generally  the  same  requisites  that  are  demanded  in  a 
pleading  under  the  Code. 

And  first :  In  regard  to  the  inducement  as  to  the  circumstances 
under  which  the  injury  was  committed,  the  property  or  thing  in- 
jured should  be  described  with  certainty,  and  in  such  terms  as  are 
generally  used ;  and  the  plaintifi^'s  right  or  interest  in  the  thing 
or  property  should  be  stated  according  to  the  facts,  to  show  that 
the  injury  by  the  defendant  has  affected  such  right  or  interest.' 
Thus,  in  a  declaration  against  a  common  carrier  or  other  bailee, 
the  declaration  must  set  forth,  by  way  of  inducement,  that  he  was 
such  common  carrier  or  bailee,  or  some  other  fact  to  show  his 
common-law  duty  and  liability.  The  declaration  must  show  a 
duty  and  the  particular  contract,  or  particular  duty,  from  which 
the  liability  results.''  But  to  state  merely  that  it  was  the  defend- 
ant's duty  to  do  so  and  so,  if  it  do  not  appear  from  the  other  facts 
stated  that  it  was  his  duty,  is  not  sufficient.^  This  is  similar  to 
the  case  just  cited,  in  the  Kew  Tork  supreme  court,*  in  which 
it  was  held  that  a  simple  allegation  that  the  plaintiff, 
[*283]  *in  replevin,  had  the  right  of  possession,  was  insufficient, 
it  being  in  violation  of  the  rule  that  pleading  is  a  state- 
ment of  facts,  not  of  legal  conclusions,  or  of  the  evidence  of  the 
facts.  And  precisely  the  same  rule  has  been  held  applicable  to  a 
pleading  under  the  Code  in  the  case  of  City  of  Buffalo  v.  Hol- 
loway^  in  the  court  of  appeals.  In  that  case  a  recovery  had  been 
had  against  the  city  of  Buffalo,  for  neglect  in  failing  to  keep  up 
lights,  guards,  etc.,  around  a  pit  that  had  been  excavated  for  a 
sewer.  The  city  of  Buffalo  then  brought  suit  against  Holloway, 
who  had  made  the  excavation  under  a  contract  with  the  city,  and 
claimed  to  recover  the  amount  of  damages  sustained.     The  com- 

»  1  Saund.  PI.  and  Ev.  728,  729.  ■»  Pattison  v.  Adams,  7  HUl,  126. 

«  Id.  692.  »  3  Seld.  493. 

«  Toilet  V.  Sherstone,  5  M.  &  W.  283. 


SP.O    TT.]  THE    COMPLAINT.  219 

pLunt,  after  setting  forth  the  contract,  alleged  generally  that  it 
"  then  became,  and  was  and  continned  to  be  the  duty  of  the  defend- 
ant," etc.,  to  maintain  lights,  guards,  etc.,  without  stating  the  facts 
and  circumstances  to  show  that  such  was  his  duty,  and  proceeded  at 
once  to  allege  a  breach.  This  was  held  bad  on  demurrer.  An  alle- 
gation of  duty,  says  the  court,  is  of  no  avail,  unless,  from  the  rest  of 
the  complaint,  the  facts  necessary  to  raise  the  duty  can  be  collected. 
When  the  plaintiff's  right,  then,  is  founded  on  an  obligation  of 
law,  or  an  obligation  on  the  part  of  the  defendant  to  observe  some 
particular  duty,  the  declaration  must  state  concisely  the  circum- 
stances which  give  rise  to  the  defendant's  particular  duty  or 
liability.     The  rule  applies  to  actions  against  sheriffs,  factories, 

inn-keepers,  as  well  as  common  carriers  and  other  bailees, 
['*284]  and  generally  to  all  actions  against  *  persons  who  have 

undertaken  an  employment  or  duty,  for  unskillfulness  or 
negligence  in  executing  it,'  !Nor  was  the  rule  otherwise  in  actions 
on  the  case  for  fraudulent  representations  or  deceit,  or  for  injuries 
to  the  relative  rights  of  persons.  In  all  instances  the  declaration 
should  set  out,  by  way  of  inducement,  the  facts  going  to  establish 
the  right  of  the  plaintiff,  which  has  been  affected,  or  the  duty  of 
the  defendant,  from  which  his  liability  arises.  It  was  in  some 
cases  the  practice  to  aver  in  the  declaration,  as  will  be  seen  in  the 
precedents,  after  stating  the  facts  by  way  of  inducement,  that  it 
thereupon  became  the  duty  of  the  defendant  to  do  the  act ;  but 
this,  as  it  was  held,  was  a  mere  exposition  of  the  legal  liability 
jiupposed  to  result  from  the  previously  stated  facts,  and  was  super- 
fluous. Unless  the  dttty  resulted,  in  all  cases,  from  the  facts,  a 
declaration  simply  stating  that  it  was  his  duty,  etc.,  was  bad  in 
substance.  The  allegation  of  duty  is  superfluous,  where  the  facts 
stated  show  a  legal  liability,  and  useless  where  they  do  not." 
These  principles,  it  will  be  seen  by  the  cases  just  cited,  are  fully 
applicable  to  a  pleading  under  the  Code.* 

'  1  CMt.  PI   307,  1  Saund.  PI.  and  ment  of  right,  oi  duty ,  or  of  obligation, 

Ev.  730,  731.  is  notliing  but  a  legal  conclusion  which 

'  Brown  v.  Mallet,  5  C.   B.   599,    1  is  entirely  superfluous  for  any  purpose 

Saund.  PI.  and  Ev.  727.  of  pleading,  and,   unless  justified  by 

3  This  is,  in  effect,  the  application  to  X\ie  facts  stated  in  the  complaint,  is 
this  class  of  cases  of  the  general  rule,  nugatory,  precisely  the  same  as  a 
discussed  on  a  former  page,  %\\&t  facts,  mere  conclusion  of  law  in  actions  on 
and  not  co7iclusions  of  law,  must  be  contract,  in  the  class  of  cases  hereto- 
averred  in  the   pleadings.     An  aver-  fore  cited. 


220  STATEMENT   OF  FACTS.  [CH.  IV, 

2d.  The  statement  of  tlie  injury.  Under  the  old  system 
[*285]  great  care  was  requisite  in  framing  an  action  *  on  the  case, 
so  that  in  the  statement  of  the  injury  the  declaration  should 
not  appear  to  be  in  trespass  or  assumpsit.  Thus,  if  the  plaintiff 
sued  in  case  for  an  immediate,  but  negligent,  act  of  violence,  the 
declaration  should  not  contain  any  words  importing  willful  force 
which  were  applicable  only  to  trespass.'  Nor,  in  an  action  against 
a  bailee  in  case,  should  the  declaration  contain  words  character- 
izing the  action  of  assumpsit,  such  as  that  the  defendant,  on  the 
delivery  of  the  property,  in  consideration,  etc.,  undertook  and 
agreed^  These  rules,  however,  since  the  forms  of  action  are  abol- 
ished, have  no  application  under  the  Code. 

In  a  statement  of  the  injury  itself,  it  is  now,  as  it  was  under 
the  old  system,  suflScient  to  describe  it  generally,  without  setting 
out  the  particulars  of  the  defendant's  misconduct.'  But  in  all 
cases  where  the  injury  arises  from  an  act  which  might  legally  be 
done,  malice,  in  fact,  must  be  averred,  and  the  reason  alleged  is 
that  it  must  be  proved,  to  entitle  the  injured  party  to  maintain 
his  action.* 

Indeed,  we  everywhere,  in  every  species  of  action,  but  more 
especially  in  this  action  on  the  case,  encomiter  this  same  prin- 
ciple, that  the  facts  necessary  to  be  proved  in  evidence  must  be 
alleged  in  the  pleading.  Thus,  where  the  act  or  non-feasance  com- 
plained of  was  not  prima  facie  actionable,  it  was  necessary  to  set 
forth  not  only  the  facts  going  to  show  the  injury  com- 
[*286J  plained  of,  but  also  the  other  facts  going  to  show  *  that  it 
was  wrongfully  done,  as  that  the  defendant,  well  Tcnowing 
the  mischievous  propensity  of  his  dog,  or  having  been  requested 
to  remove  a  nuisance  erected  by  another,  maliciously  or  fraudu- 
lently., etc.,  committed  or  permitted  the  act  complained  of.^  The 
words  maliciously  or  fraudulently .,  I  apprehend,  are  now  super- 
fluous, the  facts  themselves  in  the  complaint  being  required  to 
show  the  malice,  or  the  fraudulent,  or  wrongful  act,  or  omission. 
But  in  all  cases  in  which  it  is  necessary  to  prove  a  scienter,  in 
order  to  sustain  the  action,  as  in  a  suit  against  a  man  for  keeping 

'  5  T.  R.  648, 10  Bing.  112,  5  B.  and  » 1  Saund.  PI.  and  Ev.  737,  and  cases 
Ad.  449.  there  cited. 

*  G  Barn,  and  Cres.  268,  •*  Ic". 

»  1  Chit.  PI.  403,  3  Dowl.  7G9. 


SY.C.   11.]  TTIE   COMPLAIXT.  221 

a  dog  used  to  l);tc  man  or  sheep,'  the  complaint,  to  be  good,  must 
allege  such  sciente?'  or  knowledge  on  the  part  of  the  defendant. 

/??.  an  action  on  an  express  warranty.,  the  warranty  itself,  in 
consideration  of  the  sale,  is  the  cause  of  action,  and  no  scienter 
need  be  alleged  '^  but  in  an  action  upon  a  false  representation,  or 
fraudulent  concealment  in  the  sale,  the  complaint,  to  be  good, 
must  aver  a  knowledge  of  the  fraud  on  the  part  of  the  defendant, 
because,  to  support  the  action,  such  knowledge  must  be  made  to 
appear  by  proof  on  the  trial.'  Many  cases  might  be  instanced  to 
illustrate  this  principle.  A  single  one  in  addition  will  suffice.  In 
the  case  of  failure  of  title  to  goods,  where  there  is  neither  express 
roarranty  Tiov  fraudulent  intention  on  the  part  of  the  seller,  a 
complaint  M'ill  show  a  good  cause  of  action  without  averring  either 
a  warranty  or  scienter.,  because  neither  of  them  need  be  proved 
on  the  trial,  the  law  implying  a  warranty  of  title  in 
[*28T]  *  the  thing  sold,  unless  the  possession  of  it  be  at  the  time 
in  another.*  In  a  complaint  against  B,  in  such  case,  A 
need  only  allege  the  purchase,  for  a  valuable  consideration,  from 
B,  and  delivery  of  the  article  which  was  in  B's  possession  at  the 
time  of  sale,  and  the  failure  of  title,  claiming  judgment  for  dam- 
ages therefor.  [An  allegation  that  defendant  "  falsely  and  fraud- 
ulently represented,"  etc.,  however,  makes  the  action  sound  in 
fraud,  and  scienter  must  be  proved,  or  plaintiff  is  not  entitled  to 
recover.*  If  a  complaint  contains  allegations  which  entitle  the 
plaintiff  to  go  on  a  warranty,  or  for  fraud,  the  court  will  compel 
him  to  elect  upon  which  theory  he  will  proceed,  and,  after  he  has 
so  elected,  will  not  allow  him  to  change  his  ground.*] 

In  an  action  on  the  case  against  a  master,  for  the  negligence  of 
his  servant,  it  was  held  that  the  negligence  might  be  stated  as  that 
of  the  master,  without  noticing  the  servant,  although  it  was  said, 
even  under  the  old  system,  that,  as  the  object  of  pleading  was  to 
apprise  the  opposite  party  of  the  facts,  it  was  more  correct,  in  such 

'  1  Clut.  PI.  403,  3  Dowl.  769.  «  4  Blackf.  Ind.  353. 

s  Holman  v.  Dord,  1  C.  R.  N.  S.  331 ;        *  Brucker  v.  Fromont,  6  T.  R.  659. 
[Fowler  v.  Abrams,  3  E.  D.  Smith,  1 ;        ^  3foore  v.  JVoble,  53  Barb.  425,  36 

Ross  V.  Mather,  47  Barb.  582,  1  Greenl.  How.  385 ;    Marshall  v.    Gray,  39  id. 

Ev.,  §  51;    Williamson  v.  Allison,    2  172,  173;  Bidder  v.    Whitlock,  13  id. 

East.  446 ;  Southall  v.  Rigg,  11  C.  B.  208 ;  Keeler  v.  Clark,  l8  Abb.  158. 
481,   S.   C,  4    Eng.  L.  and  Eq.  366;        ^  Springsteed  v.   Lawson,  23    How 

Quintard  v.  Newton,  5  Rob.  72  ;  Byxbie  302. 
V.  Wood,  34  X.  Y.  607]. 


222  STATEMENT   OF   FACTS.  [CH.  IV. 

cases,  to  state  them  truly.'  This  is  precisely  the  doctrine  recog- 
nized under  the  Code  in  that  class  of  cases  which  I  have  heretofore 
noticed,  of  which  the  decision  in  Manning  v.  Witheck  is  an 
example,  and  it  seems  to  show  conclusively  that  the  case  of  DoUner 
V,  Gihson,  even  if  it  had  not  been  since  disapproved,  could  not 
be  safely  relied  on  as  a  pre-cedent." 

An  averment  of  the  time  and  place  of  committing  the  injury 
■was  regarded  as  material,  in  a  declaration,  though  the  precise  time 
and  place  were  seldom  required  to  be  proved.'  Perhaps  a  state- 
ment of  time  and  place  is  also  necessary,  in  a  complaint  under  the 
Code,  in  order  to  render  the  complaint  definite  and  certain,  though 
I  doubt  whether  a  demurrer  Avould  lie  for  such  a  defect.  Where 
the  injury  was  capable  of  being  committed  on  several  days, 
[*288]  it  might  be  described  *  as  having  been  committed  on  such  a 
day,  and  divers  other  days  and  times,  between  that  day  and 
the  commencement  of  the  suit."  [Under  such  allegations  in  tres- 
pass, several  different  injuries  may  be  proved,  and,  if  plaintiff  give 
evidence  of  one,  he  is  not  restricted  to  that,^  and  may  even  be 
allowed  to  prove.trespasses  prior  to  the  day  named  in  the  complaint.' 
A  complaint  with  a  continuando  may  be  obnoxious  to  a  motion  to 
compel  the  plaintiff  to  state  his  causes  of  action  separately,  but,  on 
the  trial,  the  defendant  cannot  object  to  proof  of  any  cause  of  actioi 
which  is  fairly  within  the  allegations.'']  So,  too,  it  was  sufficient  tc 
state  generally  that  the  injury  M-as  committed  in  the  county  at  large, 
though,  in  cases  M'here  local  description  was  required  in  evidence, 
such  local  description  must  be  given.  There  is  no  reason  why 
these  rules  should  not  be  considered  as  applicable  to  the  Code. 

3d.  The  statement  of  damages.  The  damages  resulting  from 
the  injury  complained  of  were  frequently,  and  in  some  cases 
necessarily,  stated  in  addition  to  the  usual  conclusion  of  the  dec- 
laration.* Thus,  in  actions  for  tort  for  special  damage,  the  plaintiff 
was  not  allowed  to  go  into  evidence  of  any  loss  or  damage  beyond 
what  he  had  expressly  alleged  in  his  declaration,"  as  in  an  action 
for  enticing  away  a  servant  or  apprentice,  the  damages  jper  quod 

»  McMnmis  v.  Cricket,  1  East.  110.        Rdyea  v.  Beaver,  34  Barb.  549, 25  N.  Y, 

*  [Ante,  marg.  p.  252.]  12o. 

«  1  Sandf.  Pi.  and  Ev.  7^9.  '  Id. 

*  1  Saund.  PI.  and  Ev.  7;)£  '  V^V'.'s.v  v.  Gomstock,  38  N.  T,  21. 
'  Difjij  V.  Fitzhcrhert,  Ilobart,  104  a  *  1  Chit.  PI.  410. 

9  1  Stra.  666,  B.  N.  P.  7. 


SEC.  II.]  THE   COMPLAIIS^T.  223 

servitmm  amisit  must  be  alleged  and  proved.  [In  an  action  for 
enticing  tlie  plaintil^'s  servant  or  apprentice  from  his  employ- 
ment, the  complaint  should  claim  damages  for  loss  of  services  to 
the  commencement  of  the  action,  if  the  term  have  not  then  ex- 
pired, and  plaintiff  cannot,  in  such  case,  recover  for  the  entire 
torm/  A  distinction  has  been  intimated  betvreen  a  case  where 
t]ie  contract  of  the  servant  is  by  deed  and  where  it  is  by  parol." 
The  parent  or  master,  in  such  case,  can  only  recover  actual  —  the 
damages  from  loss  of  service  —  and  not  punitive  damages.'  But, 
ill  an  action  for  breach  of  contract  to  let  a  tarm  for  three  years,  the 
plaintiff  is  entitled  to  recover  the  value  of  his  contract  for  tlie 
entire  period  immediately  upon  the  refusal  of  the  defendant  to 
perforin  the  agreement.'*  The  distinction  between  the  cases  seems 
to  be  tliat  in  the  latter  the  defendant  has  been  guilty  of  a  breach 
of  contract,  of  which  but  one  can  be  committed.  In  the  case  of 
a  servant  or  apprentice,  he  is  the  person  guilty  of  a  breach 
of  duty,  and,  although  defendant  has,  at  the  commencement  of 
the  suit,  deprived  the  plaintiff  of  services  to  which  he  was  entitled, 
the  defendant  has  not  the  right  or  the  power,  in  future,  to  control 
the  servant,  and  non-constat,  but  he  may  return,  and  the  plaintiff 
still  have  the  benefit  of  his  services  for  the  remainder  of  the  term 
for  which  he  is  entitled  to  them.]  So  in  an  action  for  special 
damages  for  the  speaking  of  words  not  per  se  actionable,  the  special 
injury  or  damages  must  be  alleged  in  the  complaint  and  proved  on 
the  trial.^  Other  cases  will  readily  suggest  themselves.  [But  if  the 
complaint,  in  an  action  for  injuries  received  through  defendant's 
negligence,  states  the  actual  nature  and  extent  of  the  injury,  and  the 
amount  of  damages,  it  need  not  state  that  a  portion  of  them  will 
accrue  in  the  future,  to  entitle  the  plaintiff  to  recover  that  part.'] 
Trefipass  to  the  person^  or  to  the  property^  Teal  or  personal. — • 
After  what  has  already  been  said  in  regard  to  the  rules  of  plead- 
ing in  actions  on  the  case,  and  their  general  applicability  to  all 

^  Eamhleton  v.  Veere,  2  Saund.  170,  ney  v.  Hitchcock,  4  Denio,  461 ;  Hunt  v 

and  see  the  elaborate  notes  to  5tli  ed.  Wotton,  T  Ray.  260. 

of  1845 ;  Covert  v.  Gray,  34  How.  Pr.  *  Taylor  v.  Bradley,  39  X.  Y.  129, 

450;  Lewis  v.  Peachy,  1  Hurl.  &  Colt,  and  see  1  Albany  Law  Jour.  2Go,  339. 

518.  6  1  Saund.  PI.  and  Ev.  739,  740,  927; 

^  Leicis  V.  Peachy,  1  Hurl.  &  Colt.  518.  [but  see  ante,  marg.  p.  274,  slander  of 

^  Covert  V.  Gray,  34  How.  450  ;  see  Cvt-  female  in  regard  to  chastity]. 

ting  V.  Ssahury,  1  gj^rague,  522  ;  W7dt-  *  Wiesenherg  v.  City  of  Appleton,  26 

Wis.  5(j. 


224  STATEMENT    OF   FACTS.  [CH.  IV. 

classes  of  injuries  under  the  Code,  it  cannot  be  necessary  in  this 
place  to  consider  the  subject  at  any  length  in  regard  to 
[*289]  *  the  various  actions  hereinbefore  classed  under  the  head 
of  trespass. 
The  distinction  in  the  form  of  action  and  the  mode  of  pleading 
between  them  and  actions  on  the  case  is  abolished,  and  the  same 
rules  generally  apply.  Those  subtile  and  curious  distinctions 
which  heretofore  made  up  so  large  a  share  of  the  learning  which 
pertained  to  this  branch  of  pleadings  have  now  passed  away.  The 
pleader  is  not  required  to  scrutinize  the  phraseology  of  his  plead- 
ing for  the  purpose  of  ascertaining  whether  it  contains  those  apt 
and  suitable  words  which  were  necessary  to  distinguish  an  action 
of  trespass  from  an  action  of  case,  or  an  action  of  case  from  an 
action  of  assumpsit.  Thus,  in  the  genuine  trespass  of  the  old 
system,  the  statement  of  the  injury  required  the  vi  et  armi  "  with 
force  and  arms," '  and  the  omission  of  this  phrase  was  ground  of 
special  demurrer.  So,  also,  in  the  conclusion  of  the  declaration, 
the  trespass  was  alleged  to  be  "  against  the  jpeace^''  etc.,  or,  if  not 
so  alleged,  the  defect  might  be  reached  by  special  demurrer.^  It 
is  scarcely  necessary  to  say  that  these  formalities  have  no  place 
under  the  Code.  The  plaintiff  in  an  action  for  trespass  to  either 
real  or  personal  property,  resulting  in  immediate  injury,  may  set 
out  his  cause  of  action  precisely  the  same  as  in  an  action  for  con- 
sequential damages,  or  for  an  injury  to  his  relative  rights.  He 
may,  however,  if  he  choose,  adopt  a  more  general  mode  of  state- 
ment, and,  though  required,  in  all  cases,  to  set  forth  his 
[*290]  right,  title  or  interest  in  the  subject-matter  of  the  *  suit 
at  the  time  of  the  wrong  committed,  yet,  his  title  as  actual 
owner,  in  an  action  for  damages  to  personal  property,  may  be  de- 
scribed by  averring  that  they  were  the  goods  of  the  plaintiff,  and 
in  an  action  for  damages  to  real  property,  that  the  house,  or  close, 
was  the  close,  etc.,  of  the  plaintiff.'  If  he  have  a  mere  special 
property  in  the  goods,  it  is  said  to  be  sufficient  to  aver  that  he 
was  lawfully  in  possession  of  them.*  I  should,  however,  judge 
the  more  proper  and  correct  course,  under  the  Code,  to  be,  very 

'  Com.  Dig.  Pleader,  1  Saund.  81, 82.  under  the  Code,  see  Heine  v.  Anderson, 

«  Chit.  PI.  409,  1  Saund.  PI.  and  Ev.  2  Duer,  318. 

1097.  *  Id. 
2  Saund.  PI.  and  Ev.  1096,  and  so  also 

I 


SEC.  ir.]  THE   COMPLAINT.  225 

briefly  to  state  the  facts  out  of  which  his  special  property  arose, 
as  that  he  has  a  hen  upon  them  for  work,  that  they  were  deposited 
with  him  as  bailee,  etc. 

The  injury  should  be  stated  without  any  inducement  of  the 
defendant's  motive  or  intent,  or  of  the  circumstances  under  which 
it  was  committed.*  [If  an  act  is  legal  an  improper  motive  will 
not  make  it  actionable."  A  mere  intent  to  do  a  subsequent  illegal 
act  will  not  render  the  first  act  unlawful.*  Nor  does  an  intention 
not  to  do  an  illegal  act  constitute  a  defense,  unless  the  means  used 
for  accomplishing  the  object  be  legal.*]  The  word  wrongfully  is 
usually  and  very  properly  inserted,  as  that  the  defendant  "  wrong- 
fully took  and  carried  away"  the  plaintiff's  goods,  specifying 
them,  or  that  the  defendant  ''wrongfully  entered  the  plaintiff's 
house  or  close,"  describing  it,  but  any  other  equivalent  words, 
such  as  unlawfully,  forcibly,  without  leave,  etc.,  would  be  sufficient, 
and,  indeed,  their  omission  entirely  does  not  seem  to  be  a  defect 
under  the  Code.  To  say  that  the  plaintiff  was  the  owner  and  in 
the  rightful  possession  of  certain  goods  and  chattels,  specifying 
them,  and  that  on  a  certain  day  the  defendant  took  and 
[*291]  carried  them  away,  or  took  *  and  converted  them  to  his 
own  use,  to  the  damage  of  the  plaintiff  of  such  a  sum,  I 
apprehend,  is  sufficient ;  and  the  same  may  be  said  in  regard  to  an 
action  for  trespass  to  real  property. 

It  may  be  observed,  generally,  in  this  place,  that  in  all  cases,  in 
actions  on  contract  as  well  as  for  a  wrong,  the  complaint  must 
show  the  plaintiff's  title,  or  his  authority  to  sue.  Thus,  the 
assignee  of  a  right  of  action  on  contract,  which  the  complaint  shows 
was  made  between  defendant  and  a  third  party,  must  set  out  the 
assignment  and  show  his  interest  as  plaintiff.  And  that,  too,  even 
though  the  action  be  brought  by  the  assignee  of  a  negotiable 
promissory  note,  for  a  mere  holder  who  has  no  interest  in  it  cannot 
now,  as  formerly  he  could,  maintain  an  action  upon  it. '  So  in  an 
action  by  a  partnership  for  a  debt  contracted  with  the  plaintiffs 

'  Saund.  PI.  and  Ev.  1096,  and  so  also  '  Gates  v.  Lounsbury,  20  Johns.  437; 

un^Qv  %\\e  Codie,  see  Heine  Y.  Anderfion,  Lawrence  v.  Ocean  Ins.  Co.,  11  Johns. 

2  Duer,  318.  263  ;  Delancey  v.  Oanong,  9  K  Y.  9. 

^  Pickard  v.  Collins,  23  Barb.  444;  *  2  oionsend  v.  Corning,  23  Wend.  4A2. 

McKeon  v.  See,  4  Rob.  467 ;  Auburn,  ^  Parker  et  al.  v.  Totten  et  al.,  10 

etc.,  V.  Douglass,  9  N.  Y.  444  ;  MucTiler  How.  Pr,  284. 
V.  Mulliollen,  Lalor's  Sup.  263;  Pratt 
V.  Potter,  21  Barb.  589. 
29 


226  STATEMENT   OF   FACTS.  [CH.  IV. 

and  a  partner  since  deceased,  liis  death  and  tlie  survivorship  of  the 
plaintiffs  should  be  alleged.'  And  so  also  in  case  of  a  defendant 
who  was  a  joint  contractor.  And  if  the  plaintiff  be  an  infant, 
and  sue  by  guardian,  the  complaint  must  show  how,  by  whom  and 
when  the  guardian  was  appointed,  and  that  A  is  an  infant.  If  he 
sue  as  committee  or  receiver,  he  must  show  how,  when  and  by 
what  court  or  officer  he  was  appointed.     A  general  averment  that 

he  was  duly  appointed  has  been  held  to  be  insuflQcient."  A 
[*292]  complaint  against  a  committee  must  show  by  what  *  court 

or  authority  the  debtor  was  declared  an  habitual  drunkard, 
and  the  custody  of  his  person  and  estate  awarded  to  the  defendant, 
or  a  demurrer  will  lie.^  If  the  plaintiff  sue  as  executor  or  admin- 
istrator, he  must  aver  his  appointment  and  show  his  title  as  such. 
But  a  simple  allegation  of  his  appointment,  it  seems,  is  sufficient, 
and  profert  of  letters  testamentary  or  of  administration  is  not 
necessary.*  [A  corporation  plaintiff,  created  by  the  laws  of  this 
State,  need  not  prove  its  existence  unless  the  opposite  party  shall 
have  specially  pleaded  that  there  is  no  such  corporation.*  It  is, 
therefore,  held  to  be  unnecessary  to  aver  in  the  complaint  that  the 
plaintiff  is  a  corporation.  And  this,  too,  under  the  Code ;'  other- 
wise in  case  of  a  foreign  corporation.'] 

It  may  be  also  properly  observed,  in  this  place,  that  the  ques- 
tion on  an  objection  to  the  sufficiency  of  the  facts  stated  in  the 
complaint,  is  not  whether  the  complaint  is  perfect  and  embraces 
every  thing  which  might  properly  be  embraced,  but  simply  whether 
there  are  facts  enough  stated  to  sustain  the  action,  and  entitle  the 
plaintiff,  if  he  prove  such  facts,  to  a  judgment.  Thus  it  was  held 
in  Lxiddington  v.  Taft^  that  in  an  action  for  an  account  between 
partners,  a  complaint  which  set  forth  a  partnership,  a  dissolution 
of  such  partnership,  the  existence  of  unsettled  accounts,  and  a 

balance  in  favor  of  the  plaintiff,  constituted  a  good  cause 
[*293]  of  action  and  was  sufficient  *  and  it  was  not  indisj)en sable 

J  1  Johns.  34.  »  2  R.  S.  458,  §  3,  as  amended  in  1864, 

«  4  Denio,  80, 7  Barb.  204  [Rurlbut  V.  2  Edm.  Stat.  477. 

Toung,  13  How.  444 ;  see  Steicart  v.  *  Union  Mut.  Ins.  Co.  v.  Osgood  and 

Beebe,  28  Barb.  34 ;  Coope  v.  Bowles,  28  Allen,  1  Duer,  707, 5  Bosw.  716 ;  Phoenix 

How.  10,  18  Abb.  442,  42  Barb.  87,  as  Bank  v.  Donnell,  40  N.  Y.  410. 

to  the  degree  of  particularity  required  ''  Waterville  Manufacturing    Co.    V 

in  sucli  cases].  Bryan  and  Brown,  14  Barb.  182. 

3  Ilall  V.  Taylor,  8  How.  428.  *  10  Barb.  447 ;  see,  also,  Richards  v 

*  Welles,  Ex'r.  v.  Webster,  9  How.  P.  251.  Edrlck,  17  Barb.  260. 


SEC.  II.]  THE    COMPLAIISTT.  227 

on  the  part  of  the  plaintiff  to  set  forth  all  the  matters  in  detail 
necessary  for  a  full  and  final  account. 

Complaint  in  equitable  cases.  —  Having  thus  presented  these 
general  principles  in  relation  to  the  subject  of  the  manner  of  the 
statement  of  the  facts  by  the  plaintiff,  in  the  complaint,  it  remains 
only  to  be  added  that  they  are  equally  applicable  to  every  class  of 
action,  as  well  as  to  every  kind  of  relief —  to  a  suit  for  an  injunc- 
tion, for  the  construction  of  a  will  or  other  instrument  in  writing, 
for  the  foreclosure  of  a  mortgage  and  for  the  partition  of  lands, 
as  well  as  to  an  action  of  trespass  to  the  person  or  property,  or 
for  the  recovery  of  real  estate,  or  for  a  mere  money  demand  on 
contract.  They  were  well  applied  by  Justice  Sill,  in  the  case  of 
Aldi'ich  V.  La])ham^  in  an  action  brought  to  foreclose  a  mortgage 
where  there  were  infant  defendants,  and  the  complaint  did  not 
allege  the  requisite  facts  to  show  what  the  interests  of  the  infants 
were.  The  court,  in  denying  the  application  for  judgment,  says: 
"  The  rule  applies  now,  as  heretofore,  that  the  judgment  must  be 
secundum  allegata  et  probata.  The  complaint  must  state  the 
facts  which  entitle  the  plaintiff  to  judgment,  and,  where  they  are 
not  admitted,  which,  as  against  infant  defendants,  is  never  the  case, 
they  must  be  sustained  by  legitimate  proof.  In  the  present  case 
both  these  essentials  are  wanting."  The  same  doctrine  was  also 
applied  in  Livingston  v.  TanTier^ 

The  pleadings  in  equity,  though  less  technical  than 
[*291]  *  those  at  law,  were  yet  always  framed  with  a  similar 
regard  to  certainty  and  uniformity,  and  in  equity,  as  at 
law,  it  was  held  that  there  was  a  regular  order  and  method  in 
which  the  pleading  should  display  the  grounds  of  the  suit.  Thus 
it  is  said  by  Judge  Story,  in  his  Equity  Pleading,  that  every  fact 
essential  to  the  plaintiff's  title  to  maintain  the  bill  and  obtain  the 
relief,  must  be  stated  in  the  bill,  otherwise  the  defect  will  be  fatal. 
For  no  fiicts  are  properly  in  issue,  unless  charged  in  the  bill,  and 
of  course  no  proofs  can  generally  be  offered  of  facts  not  in  the 
bill,  uor  can  relief  be  granted  for  matters  not  charged,  although 
they  may  be  apparent  from  other  parts  of  the  pleadings  and  evi- 
dence.'    The  rule,  however,  indicated  in  the  latter  clause  of  the 

'  6  How.  Pr.  129, 1  C.  R.  N.  S.  408.  «  Story's  Eq.  PI.,  §  256. 

s  12  Barb.  481. 


226  STATEMENT   OF   FACTS.  [CIT.  IV 

last  sentence,  is  somewhat  modified  by  section  275,  Code,  wliicli 
provides  that : 

"The  relief  granted  to  the  plaintiif,  if  there  he  no  answer,  cannot 
exceed  that  which  he  shall  have  demanded  in  his  complaint ;  but  in 
any  other  case  the  court  may  grant  him  any  relief  consistent  with 
the  case  made  by  the  complaint,  and  embraced  within  the  issue." ^ 

The  complaint  should  be  sufficiently  full  to  enable  the  court, 
upon  the  proof  or  admission  of  all  the  facts  contained  in  it,  to 
grant  the  relief  sought,  and,  if  not,  it  is  objectionable  on  demurrer 
for  insufficiency.^  The  court  must  be  able  to  see  that  the  plain- 
tiff has  sustained,  or  is  threatened  with  a  legal  injury.' 
[*295]  *  It  was  also  a  general  rule,  in  equity,  that  whatever  was 
essential  to  the  rights  of  the  plaintiff,  and  was  necessarily 
within  his  knowledge,  ought  to  be  alleged  positively  and  with  pre- 
cision.* Certaii^ty  was  also  required  in  a  bill  of  complaint,  and 
the  remarks  of  Judge  Stoet  upon  this  point  may  well  be  applied 
to  all  cases  of  pleading  under  the  Code,  namely,  that  it  is  an  ele- 
mentary rule  of  the  most  extensive  influence ;  that  the  bill  should 
state  the  right,  title  or  claim  of  the  plaintiff  with  accuracy  and 
clearness,  and  that  it  should  in  like  manner  state  the  injury  or 
gi'ievance  of  which  he  complains  and  the  relief  which  he  asks  of 
the  court.  In  other  words,  there  must  be  such  certainty  in  the 
averment  of  the  title,  upon  which  the  bill  is  founded,  that  the 
defendant  may  be  distinctly  informed  of  the  nature  of  the  case 
which  he  is  called  upon  to  meet.*  The  other  material  facts  ought 
also  to  be  plainly,  yet  succinctly,  alleged,  and  with  all  necessary 
and  convenient  certainty  as  to  the  essential  circumstances  of  time, 
place,  manner  and  other  instances.  If  title  deeds  or  other  instru- 
ments are  referred  to,  they  should  not  be  set  out  in  hceo  verba,  but 
the  substance  of  such  portions  only  of  them  as  are  necessary  to  a 
right  understanding  of  the  real  matters  of  the  bill.*  But  it  should 
not  state  any  impertinent  or  irrelevant  matters,  or  any  matters  of 
which  the  court  is  bound  judicially  to  take  notice,  such  as  matters 
of  law,  legal  presumptions,  or  recite  public  acts  or  laws.''     These 

'  See  next  section  of  this  chapter.  Keyes,  588 ;   Wright  v.  Delnfield,   25 

2  Tallman  v.  Oreen,  3  Sandf .  437.  N.  Y.  266.    See  Moak's  note  to  Clarke's 

'"  Mann  v.  Morewood,  5  Sandf.  54 ;  Ch.,  marg.  p.  502]. 

Brrdth  v.  Lockwood,  13  Barb.  209.  «  Story's  Eq.  PI.,  §  24. 

*  Coop.  Eq.  PI.  6.  '  Id.,  §  24. 

*  [^Rome  Exchange  Bank  v.  Eames,  1 


SEC.  II.]  THE  COMPLAINT.  229 

principles  are  entirely  similar  to  those  already  noticed 
[*296]  *  as  applicable  to  pleadings  at  law,  and  tlius  far  perfect 

harmony  and  uniformity  in  the  pleadings  characterize  both 
systems.  The  points  of  difference,  as  we  have  already  noticed  in 
a  previous  chapter,  have  been  abolished  by  the  Code,  and  the  two 
systems  blended  into  one. 

In  equity,  though  it  was  a  general  principle  that  the  plaintiff's 
title  could  not  be  set  forth  in  the  alternative,  yet,  a  bill  might 
sometimes  be  brought  with  a  double  aspect,  as  where  the  title  to 
relief  would  be  the  same  in  each  case,  the  plaintiff  might  aver 
facts  of  a  different  nature,  which  would  equally  support  his  appli- 
cation.' A  bill  with  a  double  aspect  was  proper,  where,  upon  his 
case,  the  complainant  was  doubtful  as  to  which  of  two  kinds  of 
relief  he  was  entitled,  or  where  the  particular  relief  depended 
upon  a  fact  of  which  he  was  uncertain.'  But  in  such  case  the 
prayer  for  relief  must  not  be  inconsistent  with  the  case  made  by 
the  bill.  Thus,  a  bill  could  not  be  filed  distinctly  charging  a  will 
to  be  void,  and  praying  that  it  might  be  declared  void  and  can- 
celed ;  or,  in  case  it  should  be  held  valid,  then  praying  a  partition 
of  lands  devised  in  it.'  The  complainant,  instead  of  alleging  that 
the  will  was  void,  should  have  stated  that  he  was  ignorant  whether 
it  was  valid  or  invalid,  and  should  have  shown  that  he  was  not  in 
a  situation  to  have  that  question  settled  by  a  suit  at  law ;  and  he 
should  then  have  prayed  that  the  question  might  be  settled  under 

the  direction  of  the  court,  and  that  he  might  have  the 
[*297]  *  relief  to  which  he  might  be  entitled  in  the  alternative, 
that  is  to  say,  either  the  will  declared  invalid,  or  a  parti- 
tion of  the  estate."  It  has  been  already  noticed  that,  under  the 
Code,  alternative  relief  may  be  prayed,  and  the  proper  rehef, 
whether  legal  or  equitable,  administered  in  the  same  action ;  but 
in  such  cases  the  relief  prayed  must  not  be  inconsistent.' 

Statutory  provisions  relative  to  actions  concerning  real  jprojperty . 
—  There  are  certain  provisions  of  the  statute  relative  to  the  state- 
ment of  facts  in  a  complaint  in  an  action  concerning  real  property, 
which  may  be  here  properly  noticed.     The  Code  provides  that  \ 

'  Story's  Eq.  PL  254.  '  1  ^""'■^•.^j^no^^i^Vr        t>     ioi 

2  Lloyd  V.  Brewster,  4  Pfiige,  537.  ^  3  Sandf.  668,  6  How.  Pr.  131. 

2  {Rome  Exchange  Bank  v.  Eames,  1 

Keyes,  588]. 


230  STATEMENT   OF  FACTS.  [CH.  IV. 

"  The  general  provisions  of  the  Revised  Statutes  relating  to  actions 
concerning  real  property,  shall  apply  to  actions  brought  under  this 
act,  according  to  the  subject-matter  of  the  action,  and  without  regard 
to  its  form." ' 

Thus,  the  general  provisions  of  the  statute  relative  to  vt^hat  a 
complaint  shall  contain,  in  an  action  to  recover  real  property,  or 
for  dower,  or  for  the  partition  of  real  estate,  or  to  foreclose  a  mort- 
gage, etc.,  are  still  in  force.  In  an  action  to  recover  real  property 
it  is  sufficient  for  the  plaintiff  to  aver  that,  on  some  day  to  be 
specified,  and  vrhich  should  be  after  his  title  accrued,  he  was  posses- 
sed of  the  premises  in  question,  describing  them,"  and,  being  so 
possessed,  the  defendant  afterward,  on  some  day  to  be  stated, 
entered  into  such  premises,  and  that  he  unlawfully  with- 
[*298]  holds  from  the  plaintiff  the  possession  *  thereof,^  to  his 
damage,  any  nominal  sum  the  plaintiff  may  think  proper 
to  state.*  If  the  plaintiff  claims  any  undivided  share  or  interest 
in  any  premises,  he  shall  state  the  same  particularly  in  such  dec- 
laration.^ [The  premises  should  be  sufficiently  described  in  the 
complaint  that  they  may  be  identified  and  possession  delivered 
from  the  description  given.'  Ejectment  may  be  brought  by  a 
vendor  against  a  vendee,  in  default,  without  notice  to  quit  or 
demand  of  possession,  so  that  none  need  be  averred.''  The  plain- 
tiff' must  have  a  legal,  and  not  an  equitable  title.*] 

So,  too,  in  an  action  for  the  recovery  of  dower,  the  statute  pro- 
vides that  the  plaintiff  shall  state  that  she  was  possessed  of  the 
one  undivided  third  part  of  the  premises,  as  her  reasonable  dower 
as  widow  of  her  husband,  naming  him. 

In  every  other  case  for  the  recovery  of  real  property,  the  plain- 
tiff shall  state  whether  he  claims  in  fee,  or  whether  he  claims  for 
his  own  life  or  the  life  of  another,  or  for  a  term  of  years,  specify- 
ing such  lives  or  the  duration  of  such  term."  And  in  case  the 
action  be  not  brought  for  dower,  the  declaration  may  contain  sev- 

>  Code,   §   455 ;   see,    also,   §§    448,  »  Id.,  §  9 ;  Glark  v.  Crego,  47  Barb. 

471.            '  599. 

2  As  provided  ia  the  subsequent  sec-  »  2  R.  S.  304,  §  8,  2  Edm.  Stat.  313 
tion.     See  g  8,  2  R.  S.  (3d  ed.)  p.  304.  Budd  v.  Bingham,  18  Barb.  494;   St. 

3  [Taylor  v.  Crane,  15  How.  362].  John  v.  Northrop,  23  id.  26 ;  Olendorf 
*  2  R.  S.  304,  t^^  7,  8,  2  Edm.  Stat.     v.  Cook,  1  Lans.  37. 

312 ;  Warner  v.  Nelligar,  12  How.  402  ;  '  Pierce  v.  Tuttle,  53  Barb.  155;  Ho 

Ensign  v.  Shearman,  14  id.  439 ;  People  taling  v.  Hotaling,  47  id.  163. 

V.  Mayor,  17  id.  61,  8  Abb.  7,  28  Barb.  »  Peck  v.  Newton,  46  Barb.  173. 

240  9  Clark  v.  Crego,  47  Barb.  599. 


SEC.  n.J  ^'I^^   COMPLAINT.  231 

eral  counts,  and  several  parties  may  be  named  as  plaintiffs  jointly 
in  one  count  and  separately  in  others.'  The  notice  required  by 
section  12  of  the  same  title  of  the  statute  is  no  longer  necessary, 
it  being  inconsistent  with  the  practice  and  general  rules  prescribed 

by  the  Code. 

It  has  been  held,'  by  the  New  York  superior  court,  that  in  every 
action  under  the  Code,  where  a  plaintiff  relies  upon  his  title  to  real 
estate,  he  must  set  forth  in  his  complaint  the  tacts  which  prove 
that  the  title  which  he  claims  exists,  and  that  the  mere 
[*299]  averment  tliat  he  has  such  title  is  insufficient.     *  Thus,  in 
an  action  to  recover  real  estate,  it  was  held  that  a  complaint 
which  merely  aUeged  that  the  premises  in  question  were  conveyed 
by  warranty  deed  to  tl.c  plaintiff,  that  he  tliereby  became  seized  by 
a  lawful  title  of  the  said  premises,  that  the  defendant  is  in  pos- 
session of  the  same,  and  unlawfully  withholds  such  possession 
from  the  plaintiff,  is  insufficient  as  not  containing  facts  sufficient 
to  constitute  a  cause  of  action.     The  complaint,  it  seems,  con- 
tained no  allegation  that  the  plaintiff  had  been  in  possession  of 
the  premises,  and  that,  being  so  possessed,  the  defendant  entered 
and  unlawfully  withholds,  etc.     All  the  facts  which  the  complaint 
avers,  says  the  court,  may  be  true,  and  yet  the  plaintiff  not  have 
a  shadow  of  a  right  to  the  judgment  which  he  demands.     The 
bare  allegation  that  the  plaintiff  was  seized  of  the  premises  by  a 
lawful  title,  and  that  the  defendant  unlawfully  withheld,  etc., 
were  held  to  be  mere  conclusions  of  law,  which,  as  they  did  not 
follow  from  the  facts  previously  averred,  must  be  wholly  dis- 
regarded. 

In  the  case  of  Livingston  v.  Tanner,'  at  a  general  term  in  the 
third  district,  it  was  held  that,  though  the  plaintiff  might  recover 
for  the  use  of  the  land,  in  the  same  action  brought  for  the  recovery 
of  the  land  itself,  yet,  in  order  to  entitle  him  to  prove  the  value 
thereof,  and  to  recover  the  same,  his  complaint  should  contam 
in  substance  the  same  allegations  which  the  Eevised  Statutes 
reqmred  to  be  inserted  in  the  suggestions  for  the  recovery  of 
mesne  profits.  If  these  allegations  were  not  made  the 
P300]  *  plaintiff  would  not  be  allowed  to  prove  the  vearly  value 

>  2  R.  S.  304,  §§  10, 11.  '  12  Barb.  481. 

»  Lawrence  v.  Wright,  2  Duer,  673. 


232  STATEME^STT   OF   FACTS.  [CII.  IV. 

of  tlie  land,  nor  recover  its  use  in  the  action,  but  would  be  driven 
to  a  separate  action.  [The  plaintiff  may  have  a  separate  action  for 
mesne  profits  ;*  or,  if  the  complaint  in  the  ejectment  suit  contain 
proi3er  allegations,  he  may  recover  damages  in  that  down  to  the 
time  of  trial  f  and  the  jury  may  give  interest.'] 

In  regard  to  the  proper  parties,  plaintiffs  and  defendants  to  an 
action  of  ejectment,  and  when  the  action  will  lie,  the  reader  is 
referred  to  what  was  said  on  the  subject  in  the  second  and  third 
sections  of  chapter  two  of  this  work. 

A  complaint  in  dower,  it  seems,  need  not  allege  that  the  defend- 
ant is  in  actual  possession  of  the  premises,  or  that  six  months  have 
elapsed  since  the  death  of  her  husband.' 

A  complaint  for  the  foreclosure  or  satisfaction  of  a  tnortgage 
must  state  whether  any  proceedings  have  been  had  at  law  for  the 
recovery  of  the  debt  secured  thereby,  or  any  part  thereof,  has 
been  collected.^  This  is  a  matter  of  substance  required  by  the 
statute,  and  an  omission  to  state  it  would  be  ground  for  demurrer. 
If  the  complaint  shows  that  a  judgment  for  the  mortgage  debt 
has  been  obtained,  it  must  also  show  that  the  remedy  thereon  has 
been  exhausted,  that  is,  that  an  execution  against  the  property  of 
the  defendant  has  been  returned,  unsatisfied  in  whole  or  in 
part.'  And  if  such  allegation  be  not  made  the  complaint  will 
also  be  defective  on  demurrer.''  The  mere  pendency  of  a  suit 
at  law,  it  was  held,  would  not  bar  a  bill  of  foreclosure,  but  the 
suit  could  not  be  prosecuted  without  farther  leave.*  The 
[*301]  *  mortgagee  might  sue  at  law  upon  the  bond  and  at  the 
same  time  foreclose  the  mortgage  in  equity.  This,  under 
the  Code,  he  may  now  do  in  one  action,  even  though  the  plain- 
tiff' be  the  assignee  of  the  mortgage  [provided  the  bond  or  principal 
debt  be  also  assigned,  for  without  this  he  would  obtain  no  title  to 
the  mortgage.  That  being  an  incident  to  the  principal  debt,  can- 
not be  assigned  without  it  and  enforced.*    Otherwise  if  it  be  clearly 

1  Holmes  v.  Davis,  19  N.  Y.  488.    See  «  2  E.  S.  192,  2  Edm.  Stat  200. 
Leland  v.  Touaey,  6  Hill,  328,  as  to  al-  ^  9  Paige,  187  [  Williamson  v.  Cham,- 
legations.  plin,  Clarke's  Cli.  9,  and  Moak's  note, 

2  Vanderwoi't  v.Gould, 36  N.Y.  645-6.  marg.  j).  11. 

3  Id.  8  8  Paige,  70,  9  id.  294,  370,  Moak's 
*To)cnsend  v.  Townsend,  2  Sandf.  711.     notes  to  ('larke's  Ch.,  marq.  p.  11. 

^  2  Ft.  S.  191,  §  loo,  2  Edm.  Stat.  198.  '  Merritt  v.  Bartholick,  47  Barb.  253, 
See  Moak's  notes  to  Clarke's  Ch,,  marg.  36  N.  Y.  44 ;  Cooper  v.  Newland,  17 
p.  11.  Abb.  343. 


SEC.  11.]  THE    COMPLAINT.  233 

shown  that  the  mortgage,  with  the  assent  of  the  debtor,  was 
assigned  by  tlie  mortgagee  as  security  for  a  new  and  distinct  in- 
debtedness of  the  mortgagor  ;*  or  if  no  bond  or  other  evidence 
of  debt,  to  which  the  mortgage  is  collateral,  be  given  therewith.* 
An  assignment  of  the  mortgage,  "  and  the  moneys  to  grow  due 
thereon,"  will,  however,  carry  the  principal  debt,^]  If  the  plain- 
tiff* has  obtained  judgment  on  a  collateral  security,  given  for  the 
debt  by  a  third  person,  he  cannot,  it  seems,  foreclose  until  he  has 
exhausted  his  remedy  on  such  judgment.''  In  such  case,  if  he 
sets  forth  the  judgment  so  obtained,  his  complaint  must  also  allege 
the  return  of  an  execution  unsatisfied,  or  the  defendant  may  de- 
mur. If  the  complaint  states  that  no  proceedings  have  been  had 
at  law,  etc.,  such  objection  may  be  taken  by  answer. 

JSTo  provisions,  other  than  for  the  foreclosure,  can,  after  the 
action  is  commenced,  be  had  for  the  recovery  of  the  mortgaged 
debt,  or  any  part  thereof,  unless  expressly  authorized  by  the  court.* 
It  was  supposed  that  section  274  of  the  Code  would,  in  an  action 
to  foreclose  a  mortgage,  authorize  a  judgment  against  the  makers 
of  a  note  or  other  obligation,  for  which  the  mortgage  was  executed 
as  security,  such  makers  being  parties  also  to  the  foreclosure  suit, 
leaving  the  action  for  the  foreclosure  to  proceed  under  the  order 
of  the  court.  It  was,  however,  ruled  otherwise  in  the  case  of 
Cobb  V.  Thornton  et  al.^  the  court  holding  that  it  had  no  authority 
to  render  a  contingent  judgment  for  the  balance  of  the  debt  re- 
maining unsatisfied  after  a  sale  of  the  mortgaged  premises, 
[*302]  previous  to  the  rendition  of  the  principal  judgment  *for 
a  foreclosure  and  sale  of  the  premises  mortgaged. 

The  complaint,  in  an  action  of  foreclosure,  should  ordinarily 

allege  the  making  of  the  mortgage,  its  date  and  amount,  when 

and  where  recorded,  and  a  brief  description  of  the  premises.     If 

a  bond  has  been  given  with  the  mortgage,  it  should  also  be  briefly 

described  in  the  complaint.     If  junior  mortgagees  or  grantees,  or 

junior  judgment  creditors  are  made  parties,  as  they  must  be  in 

order  to  foreclose  their  equity  of  redemption,  it  shoiild  be  stated 

that  the  interest  of  such  defendants  is  junior  and  subordinate  to 

J  Cam'phell  v.  Burch,  1  Lans.  178.  '4  Paige,  551  [Moak's  note  to  Clarke's 

*  Severance  v.  Griffith,  2  Lans.  88.  Ch.,  marff.  p.  11]. 

3  Belden  v.  Medcer,  2  Lans.  470.  «  8  How.  Pr.  66. 

■*  4  Paige,  549  [Moak's  note  to  Clarke's 
Oil.,  marg.p.  11]. 
30 


^34  STATEMENT   OF   FACTS.  [CII.  IV. 

tliat  of  tliG  plaintiif.  And  it  will,  in  general,  be  sufficient  to  aver 
that  such  defendants  have,  or  claim  to  have,  some  interest  in  the 
mortgaged  premises,  bv  mortgage,  judgment  or  otherwise,  but 
which  the  plaintiif  alleges  is  junior  and  subordinate  to  the  mort- 
gage and  claim  of  the  plaintiff.  [A  widow's  dower,  where  the 
mortgage  was  executed  bj  the  husband  during  coverture,  is  not 
barred,  although  she  be  made  a  defendant  and  the  complaint  allege 
that  she  claims  some  interest  in  the  premises,  "  as  subsequent  pur- 
chaser or  incumbrancer  or  otherioise,^^  for  the  record  only  bars  her 
interest,  if  any,  acquired  subsequent  to  the  mortgage.'  If  the 
plaintiff  desire  to  cut  off  her  dower  by  the  sale  or  mortgage  fore- 
closure, he  should  state  the  facts  upon  which  the  question  arises, 
as  he  insists  they  exist,  according  to  the  rules  of  equity  pleading.*] 
It  would  be  improper  to  set  out  the  mortgage  or  bond  at  any 
length  in  the  complaint ;  and  it  will  be  enough  to  state  that  the 
defendant  mortgaged  the  premises  on  the  day  mentioned  in  the 
mortgage,  to  secure  the  payment  of  the  sum  therein  mentioned, 
with  a  brief  description  of  the  premises,  and  that  there  is  due  to 
the  plaintiff,  for  principal  and  interest  upon  the  mortgage,  the 
sum  claimed.^  The  complaint  must  also  allege  that  no  proceed- 
ing has  been  had  for  the  recovery  of  the  debt  secured  by  the 
mortgage,  or  any  part  thereof;  or,  if  such  proceedings  have 
been  instituted,  the  complaint  should  state  what  they  are  and 
against  whom  instituted,  and  that  an  execution  has  been  returned 

upon  the  judgment  rendered,  and  that  the  remedy  of  the 
[*303]  *  defendant  is  exhausted  therein.*     The  complaint  must 

also  state  the  relief  demanded,  which  is  ordinarily  the 
foreclosure  and  sale  of  the  mortgaged  premises,  for  the  payment 
of  the  mortgaged  debt,  and  that  the  defendant,  who  is  personally 
liable,  may  be  adjudged  to  pay  any  deficiency  which  may  remain. 
The  whole  relief  to  which  the  plaintiff  conceives  himself  entitled 
should  be  stated  in  the  complaint,  for  if  the  defendant  does  not 
answer  the  complaint  the  court  has  no  power  to  give  the  plaintiff' 
any  other  or  further  relief  than  that  which  he  has  demanded  in 
his  complaint.     Therefore,  the  precise  judgment  which  the  plain- 

'  Lewis  V.  Smith,  9  N.  Y.  502, 11  Barb.        ^  2  Monell's  Pr.  217.  218. 
152;  Lee  v.   Parker,  43  id.  611,  614,        ^2  Monell's  Pr.  217,  218,  4   Paig«. 
Moak's  note  to  Clarke's  Cli.,  mrg.  p.  252.     551,  1  Clark,  9, 

'  Leiou  V.  Smith,  9  N.  Y.  515,  Moak's 
notes  to  Clarke's  Ch.,  marg.  p.  252. 


SEC.  II.]  THE    COMPLAINT.  235 

tiff  desires  sliould  be  claimed  in  the  complaint.  So,  where,  for 
any  purpose,  it  is  contemplated  to  move  for  an  injunction,  a 
prayer  for  that  purpose  should  be  contained  in  the  complaint,* 
otherwise  the  court  will  not  restrain  the  defendant  unless  the 
facts,  rendering  such  restraint  necessary,  arise  after  the  suit  has 
been  commenced,  when  the  injunction  may  be  granted  upon 
affidavit.'' 

It  is  held  in  the  late  case  of  Corning  v.  Smith,^  that  in  a  suit 
to  foreclose  a  mortgage,  one  who  claims  adversely  to  the  title  of 
the  mortgagor,  and  prior  to  the  mortgage,  cannot  properly  be 
made  a  party  defendant  for  the  purpose  of  trying  the  validity  of 
such  adverse  claim  of  title.  The  decision,  however,  was  rendered 
in  a  suit  in  equity  arising  before  the  Code  [but  the  rule  undoubt- 
edly aj)plies  to  actions  under  it.*] 
["^301]  "^  An  action  for  the  ^partition  of  real  estate  may  be 
instituted  under  the  Code  by  summons  and  complaint,  as 
heretofore  by  bill  in  chancery,  [The  proceedings  by  petition 
under  the  statute  were,  it  seems,  abolished  by  the  Code.^]  The 
statute "  prescribed  that  the  petition  (and  also  the  bill,  or,  under 
the  present  practice,  the  complaint),  shall  contain  the  following 
matters : 

1.  It  shall  particularly  describe  the  premises  sought  to  be  divided 
or  sold. 

2.  It  shall  set  forth  the  rights  and  titles  of  all  persons  interested 
therein,  so  far  as  the  same  are  known  to  the  petitioner,  including 
the  interest  of  any  tenant  for  years,  for  life,  by  the  curtesy  or  in 
dower,  and  the  persons  entitled  to  the  reversion,  remainder  or 
inheritance  after  the  termination  of  any  particular  estate  therein, 
and  every  person  who,  by  any  contingency  contained  in  any  de- 
vise, grant  or  otherwise,  may  be  or  become  entitled  to  any  bene- 
ficial interest  in  the  premises. 

3.  It  shall  be  verified  by  affida\at. 

It  has  been  questioned  whether  the  verification  is  absolutely 

»  Hovey  v.  McCrea,  4  How.  Pr.  31.  p.  252 :  Lee  v.  Parker,  43  Barb.  611, 

2  2  Monell's  Pr.  220.  614 ;  Wdlsh  v.  Eutgers,  etc.,  13  Abb.  39, 

3  2  Seld.  82.  [See  Moak'p  note  to  ^  Code,  §448;  Crof/an  v.  Living. 
Clarke's  Cli.,  mnrg.  p.  252,  wbere  tbe  ston.  17  N.  Y.  225,  6  Abb.  355;  Matter 
cases  are  collated].  of  Cavanaugh,  11  id.  258,  261,  23,How 

*  Moak's  note  to  Clarke's  Ch.,  marg.    358. 

«  2  R.  S.  318,  §  5,  3  Edm.  Stat.  327. 


236  STATEMENT   OF   FACTS.  [CH.  IV. 

necessary  under  sections  156  and  157  of  the  amended  Code.  The 
most  safe  and  correct  practice,  however,  seems  to  be  in  all  cases 
to  follow  the  statute  and  verify  the  complaint. 

In  case  any  one  or  more  of  the  parties,  or  the  share  or 
[*305]  quantity  of  interest  of  any  of  the  parties,  *  be  unknown 

to  the  petitioner,  or  be  uncertain  or  contingent,  or  the 
ownership  of  the  inheritance  shall  descend  upon  an  executory 
devise,  or  the  remainder  shall  be  a  contingent  remainder,  so  that 
such  parties  cannot  be  named,  such  fact  or  facts  must  be  stated.* 
It  is  sufficient  in  a  complaint  in  partition  to  allege  that  the  parties . 
are  seized  as  tenants  in  common.  It  is  not  necessary  to  allege 
that  the  plaintiff  is  in  possession  of  the  premises,  as  that  fact  is 
presumed  from  the  allegation  that  the  parties  are  seized."  If  the 
premises  are  held  adversely,  an  action  for  partition  cannot  be  sus- 
tained.* [Except  the  adverse  claim  is  on  eqtdtable  grounds.*  But 
an  admitted  life  estate,  covering  the  whole  premises,  is  not,  it 
seems,  adverse,  and  does  not  prevent  the  remainder-man  from  being 
seized  in  possession.*  And,  if  the  premises  are  unoccupied,  one 
tenant  in  common  is  constructively  in  possession,  so  as  to  entitle 
him  to  maintain  the  action.*]  If  that  fact  appear  on  the  face  of 
the  complaint,  it  is  presumed,  under  the  Code,  a  demurrer  would 
lie.^  If  it  does  not  so  appear  the  objection  may  be  taken  by 
answer.*  Formerly  the  practice  was,  that  where  the  legal  title 
was  disputed  and  doubted,  the  party  would  be  sent  to  a  court  of 
law  to  have  his  title  established.^  But  the  bill  would  be  retained 
to  give  the  plaintifi'  an  opportunity  to  establish  his  title  at  law." 
It  was  customary  also,  in  some  cases,  to  set  forth  the  conveyance 
by  which  the  plaintiff  held,  or  the  evidence  of  his  title.  Now, 
however,  under  the  Code,  the  fact  of  the  seizin  may  be  tra- 
versed, and  the  legal  title  determined,  and  it  is  questionable 
whether  it  is  proper  any  longer  to  set  forth  the  conveyances 

by   which   the  plaintiff  holds,  or   the   evidence   of  his 
[*306]  *  title.     All  this  is  matter  of  proof,  and,  if  the  defend- 

1  2  R.  S.  318,  §  7,  2  Edm.  Stat.  327.  The  former  case  arose  collaterally,  no 

^  3  Paige,  242.  objection  liaving  been  taken  by  any 

3  2  Barb.  Ch.  398.  9  Cow.  530, 5  Denio,  partv  to  the  action. 

385 ;  Florences.  Hopkins,  46  N.  Y.  182.  «  Beebe  v.  Griffin,  14  N.  Y.  235. 

*  Ilosford  V.  Menoin,  5  Barb.  52  ;  ilox  '  2  Barb.  Ch.  398. 

V.  Smit/i,  4  Johns.  Ch.  271.  «  2  Paige,  212. 

6  Blnkeley  v.   Calder,  15  N.  Y.  617,  »  3  Johns.  Ch.  602,  4  id.  271. 

but  r-ee  Fleet  v.  Borland,  11  How.  489.  ■»  1  Johns.  Ch.  14. 


SEC.  II.]  THE   COMPLAINT.  237 

ant  deny  that  tlie  plaintiff  is  seized,  it  is  to  be  given  in  evidence 
on  the  trial.' 

In  Striker  v.  Lyncli^  a  partition  suit  nnder  the  Code,  the  com- 
plaint alleged  that  B,  and  live  other  defendants,  "  claimed  some 
right,  interest,  estate  or  title  in  the  lands  in  question,  or  some 
part   thereof,  but   that  their  claim  was  illegal,  inequitable  and 
void ;  yet  they  claim  an  interest  adverse  to  the  plaintiff,  and  to 
the  other  defendants,  and  are  therefore  necessary  parties  to  a  com- 
plete determination  of  the  question  involved  in  the  action,"  and 
prayed  that  said  B,  and  tlie  other  five  defendants,  be  adjudged  to 
have  no  estate  or  title  in  the  land,  and  be  forever  barred  from 
claiming  the  same.     This  allegation  was  considered  defective  on 
demurrer.     "Although  section  118,"  observes  Justice  Peatt  in 
his  opinion  in  the  case,  "  says  that  any  person  may  be  made  a  de- 
fendant who  has  or  claims  an  interest  in  the  controversy  adverse 
to  the  plaintiff,  yet,  I  appreliend,  something  more  is  necessary  to 
be  stated  in  the  complaint  than  merely  that  they  claim  such 
interest,  especially  if  the  claim  is  controverted.     The  nature  of 
the  claim  should  be  stated,  otherwise  there  would  be  no  method 
of  ascertaining  whether  it  could  be  joined  with  the  main  subject 
of  litigation  under  section  167."     In  Bogardus  v.  Parker  et  al,'' 
it  was  decided,  at  the  New  York  special  term,  that  a  com- 
[*307]  plaint  in  partition  might  set  up  the  claim  of  one  *  of  the 
defendants  to  a  specific  lien  for  moneys  paid  to  extinguish 
liens  on  the  premises  sought  to  be  partitioned,  and  ask  for  an 
account  to  be  taken  of  such  advances.     The  claim  of  one  defend 
ant,  it  was  said,  may  be  disputed  by  either  of  his  co-defendants, 
as  well  as  the  plaintiff,  and  these  claims  may  be  tried  and  settled 
in  a  partition  suit,  if  they  involve  interest  in,  or  liens  on,  the 
property  sought  to  be  partitioned.     [This  is  clearly  not  good  law, 
ordinarily  where  the  claim  is  against  one  of  the  defendants.*     If, 
however,  it  is  against  all  the  owners,  so  as  to  constitute  a  valid 
claim  against  the  plaintiff,  the  rule  may  be  otherwise.]  ^ 

The  Code  prescribes  that  proceedings /<?/•  the  determination  of 
claims  to  real  projyerttj  may  be  prosecuted  by  action  under  that 

>  As  to  who  may  apply  for  partition  ^  7  How.  Pr.  305.         ,    ,    p,,     _„„„ 

see  2  R.  S.  318.  ^1,  2  Edm.  Stat.  326,  ^  Moak's  ^^^^^,^1^^'''^'' Ip^^,"^^' 3' 

also  act  amending,  Laws  1852,  p.  411, 4  p.  15,  3  Keyes^  241, 9  Paige^5o9,  Clarke  s 

Edm.  Stat.  G15.  Ch.  395,  3„ Rob.  676,  4  Bosw.  646,  2 

«  11  Leg.  Obs.  11(5.  Barb.  Ch.  Pr.  180. 


233  STATEMENT   OF  FACTS.  [CH.  TV. 

act,  without  regard  to  form,  etc.  The  Revised  Statutes  particu- 
larly prescribe  what  the  notice  (and  so  it  is  presumed  the  com- 
plaint) shall  contain,  to  which  it  is  necessary  here  only  to  refer.* 
[The  remedy  under  the  Revised  Statutes  is  by  action  under  the 
Code,'^  in  which  the  complaint  should  state  substantially  what  was 
required  in  the  notice  under  the  Revised  Statutes."  The  defend- 
ant may  set  up  any  defense  legal  or  equitable  which  he  could  in 
an  ordinary  action.*  The  claim  must  be  adverse  to  the  party  in 
possession  ;  a  tenant  for  life  cannot  proceed  to  compel  the  deter- 
mination of  conflicting  claims  which  relate  merely  to  the  remainder  • 
nor  can  a  remainder-man  do  so  because  not  in  possession.^  Pro- 
ceedings by  notice  under  the  statute  may  be  instituted  if  the 
party  in  possession  desire,'  but  it  must  be  apparent  that^j  except 
under  special  circumstances,  the  remedy  by  action  is  preferable.] 

The  writ  of  nuisance  and  the  action  of  waste  are  abolished  by 
the  Code,  and  wrongs  remediable  by  the  action  of  waste  and  the 
writ  of  nuisance,  are  now  the  subjects  of  civil  actions  under  the  Code, 
without  regard  to  the  form  of  the  action,  so  far  as  the  same  can 
be  applied.'  For  the  provisions  of  the  Revised  Statutes 
[■■'^■308]  respecting  writs  of  nuisance  and  ^actions  of  waste,  and 
what  facts  are  to  be  set  forth  therein,  see  titles  4  and  5  ; 
chap.  V,  part  3.* 

Second.  What  ma^tters  tnust  not  Ije  alleged.  —  Having  consid- 
ered thus  far  what  averments  and  facts  are  necessary  to  be  alleged 
in  order  to  constitute  a  sufficient  cause  of  action,  it  will  be  now 
proper  to  notice  what  matters  the  plaintiff"  is  not  at  liberty  to  set 
forth  as  part  of  his  cause  of  action. 

The  general  rule  is  that  all  the  facts  necessary  to  sustain 
the  plaintiff''s  cause  of  action  must  be  set  forth,  and  no  more. 
Whatever  circumstances   are  necessary  to  constitute  the  plain- 

»  2  R.  S.  313,  §  2,  2  Edm.  St.  333,  as  How.    354 ;  Mann  v.  Frowst,  3  Abb. 

amended  in  1848, 4  Edm.   St.  610  ;  See  446. 

also  Laws  1853,  p.  536, 4  Edm.  St.  503,  ^  Onderdonk  v.  3fott,  34  Barb.  106. 

Laws  1860,  p.  295,  4   Edm.    St.   611,  As  to  where  an  action  lies  under  the 

Laws  1864,  p.  469, 6  Edm.  St.  348.  act  of  1853  in   Woodruff  v.   Cook,  47 

2  Eammond  v.    Tillotson,  18    Barb.  Barb.  304. 

333 ;  overruling  Cr«;ie  V.  Sawyer,!  0.  ^  Barnum  v.   Gains,  33   Barb.  604; 

R.  N.  S.  31,  5   How.  372;   Mann   v.  Burnham    v.    Onderdonk,    41    N.    T. 

Provost,  3  Abb.  446 ;  Ilager  v.  Hager,  435. 

88  Barb.  92.  '  Code,  gi^  450,  451,  453,  453,  454. 

'  Hammond  v.    Tillotson,  18  Barb.  ^  See    cases    cited,  A'^oorhies'    Code 

333 ;  Harjer  v.  Ilager,  38  id.  93.  under  g§  450-454. 

*  Peck  V.   Brown,  3   Rob.   119,  36 


SEC.  II.]  THE   COMPLAINT.  239 

tiff's  cause  of  action  or  ground  of  defense,  are,  in  general,  sur- 
plusage.' 

Surplusage  taken  in  its  general  sense  includes  unnecessary 
matter  of  whatever  description ;  as  1st,  matters  wholly  foreign 
and  irrelevant  /  2d,  matters  which  though  not  wholly  foreign  do 
not  require  to  be  stated,  such  as  mere  matters  of  evidence,  matter 
of  law,  or  other  things  which  the  court  officially  notices,  matter 
coming  more  properly  from  the  other  side,  matter  necessarily 
implied,  etc. ;  3d,  unnecessary  prolixity  in  the  manner  of  state- 
ment." Superfluous  or  irrelevant  allegations  also  include  those 
which  are  repugnant  to  what  was  before  alleged.^ 

In  pleadings  at  law  surplusage  was  not  a  subject 
["309]  *of  demurrer,  the  maxim  being  utile  per  inutile  non  vitia- 
turJ^  In  flagrant  cases  of  this  kind,  however,  the  courts 
referred  the  pleading  to  an  officer,  that  he  might  strike  out  such 
matter  as  was  redundant  and  was  capable  of  being  omitted  without 
injury  to  the  material  averments.^  In  some  cases,  too,  the  courts 
have,  on  motion,  ordered  the  superfluous  matter  to  be  struck  out 
of  the  pleadings,  and  if  there  were  any  vexation,  have  required 
the  party  inserting  it  to  pay  the  costs  of  the  a23plication.* 

In  pleadings  in  equity  impertinenoe  was  the  same  kind  of 
fault  which  surplusage  was  at  law.  Scandal  consisted  in  the 
allegation  of  any  thing  which  is  unbecoming  the  dignity  of  the 
court  to  hear,  or  is  contrary  to  good  manners,  or  which  charges 
some  person  with  a  crime  not  necessary  to  be  shown  in  the  cause. 
To  which  may  be  added  that  any  unnecessary  allegation  bearing 
cruelly  upon  the  moral  character  of  an  individual,  is  also  scandal- 
ous.' Scandalous  or  impertinent  statements  in  a  pleading  in 
equity,  if  excepted  to  by  a  defendant,  might  be  referred  to  a 
master,  and  on  his  report  expunged  by  the  court  with  costs  [or 
may  be  stricken  out  by  the  court  on  its  own  motion.*] 

Irrelevant  and  redundant  matter.  —  The  Code  undertakes  by 
a  general  provision  to  embrace  all  these  various  cases,  and  to  pro« 
vide  an  uniform  mode  of  practice  for  reaching  these  defects  in 
pleading.     Section  160  provides: 

>  See  1  Chit.  PI.  214.  "  Id.     1  Chit.  PI.  231. 

2  Steph.  PI.  432.  '  1   Barb.  Ch.  Pr.  41 ;   4  Johns.  Ch, 

3  Steph.  PI.  421,422.  437. 

•4  1  Chit.  PI.  231.  «  People,  v.  A.  &  S.  B.  R.,  57  Barb. 

5  Stepb.  PI.  421.  804,  Oen.  T.  at  Sp.  T.,  8  Abb.  N.  S.  12a 


240  STATEMENT   OF   FACTS.  [CH.  IV. 

[*310]  *"  If  irrelevant  or  redundant  matter  be  inserted  in  a  plead- 
ing, it  may  be  stricken  out,  on  motion  of  any  person 
aggrieved  thereby,  and  when  the  allegations  of  a  pleading  are  so 
indeiinite  or  uncertain  that  the  precise  nature  of  the  charge  or 
defense  is  not  apparent,  the  court  may  require  the  pleading  to  be 
made  definite  and  certain  by  amendment." 

The  Code  has  not  defined  what  constitutes  irrelevant  and 
redundant  matter  ;  we  are,  therefore,  left  to  determine  it  by  the 
rules  already  laid  down  in  various  judicial  decisions,  and  from  the 
analogy  of  the  old  practice  at  law  and  in  equity.  In  its  widest 
sense  undoubtedly  irrelevant  and  redundant  matter  may  be  con- 
sidered as  embracing  every  thing  that  was  surplusage  in  pleadings 
at  law,  as  well  as  scandal  and  impertinence  in  pleadings  in  equity. 
Hence  unnecessary  prolixity  of  statement,  mere  matters  of  evi- 
dence, conclusions  of  law,  matters  properly  coming  from  the  other 
side,  as  well  as  matters  wholly  foreign  to  the  controversy,  may  be 
considered  irrelevant  and  redundant.  It  is  to  be  observed,  how- 
ever, that  now  as  formerly,  redundancy  and  surplusage  do  not 
vitiate  a  good  pleading,  nor  can  it  be  demurred  to,*  but  is  waived, 
unless  the  objection  be  taken  by  motion  to  strike  ont,  which  must 
be  made  before  demurrer  or  answer,''  and  before  noticing  the  cause 
for  trial,'  and  within  twenty  days  from  the  time  of  service  of  the 
pleading  objected  to.*  [Obtaining  an  order  extending  time  to 
answer  without  reserving  the  right  to  such  a  motion  waives  such 
right  and  even  supersedes  a  motion  already  made.' 

In  Hynds  v.  Grisicold^  it  was  said  by  Mr.  Justice 
■"^Sll]  *Harkis  that  the  160th  section  of  the  Code  did  not  author- 
ize an  application  upon  motion  to  strike  out  every  irrele- 
vant or  redundant  expression  or  clause  which  might  be  found  in 
a  pleading.  Effect  must  be  given  to  the  word  "  aggrieved^''  as 
used  in  that  section.  The  matter  must  not  only  be  irrelevant  or 
redundant,  but  some  party  must  be  aggrieved  or  prejudiced 
thereby.'  In  a  subsequent  case,  however,  before  the  same  justice, 
the  language  of  this  opinion  was  essentially  qualified.'     It  was 

'  WMte  V.  KiM,  4   How.   Pr.   68 ;  '  Burke  v.  Broadway,  etc.,  34  How. 

Esmond  v.   Van  Benscoten,  5  id.  43.  238. 

[Colton  V.  Jones,  7  Rob.  164.]  «  4  How.  Pr.  69,  8  id.  237,  4  Sand. 

2  Sup.  Court  Rules,  40  ;  2  Sand.  680.  705. 

[12  Abb.  74,  1  Abb.  N.  S.  406,  Smith  v.  '  See  also  2  Sand.  682,  and  Bedell  v. 

Countr7/man,  30  N.  Y.  655.]  Stickles,  4  How.  432. 

3  5  How.  Pr.  44.     [15  Abb.  287.]  »  Williams  v.  Hayes,  5  How.  Pr.  475. 
*  Id.  Sup.  Court  Rule  No.  28,  1870. 


SEC.  II.]  THE   COMPLAINT.  241 

there  said,  it  was  not  intended  tLat  before  such  a  motion  could  be 
o-ranted  it  must  be  shoM'n  that  some  actual  injury  would  result  to 
the  moving  party,  if  the  matter  sought  to  be  expunged  was  suf- 
fered to  remain.  Every  unnecessary  expression  or  redundant 
sentence  should  not  be  expunged.  But  w^here  entire  statements 
are  introduced,  upon  which  7io  material  issue  can  he  taken^  the 
opposite  party  may  be  aggrieved  by  allowing  them  to  remain, 
and  in  all  cases  is  entitled  to  his  motion.  [Such  is  the  rule  in 
the  common  pleas  of  New  York.'] 

In  the  case  cited.  Justice  Hakeis  expressed  his  full  concur- 
rence w4th  Justice  Hand,  in  the  view  taken  of  the  question  in 
Carpenter  v.  West?  The  opinion  in  that  case  expresses  with 
much  clearness  and  force  what  we  regard  as  the  true  construction 
of  this  section  of  the  Code  : 

"  By  irrelevant  or  redundant  matter  in  the  Code,  I  take  it  is 
meant,  what  is  usually  understood  as  impertinent ;  for  a 
[*312]  pleading  in  equity  is  impertinent  *when  it  is  stufted  with 
long  recitals,  or  long  digressions  which  are  altogether 
unnecessary  and  totally  immaterial  to  the  matter  in  hand.'  It  is 
like  surplusage  at  law.  According  to  Webster,  redundant  means 
superfluous,  more  than  is  necessary,  superabundant ;  and  irrele- 
■mnt,  not  applicable  or  pertinent,  not  serving  to  support.  Both, 
therefore,  may  probably  come  under  the  head  of  impertinent. 
Prolixity  may  become  redundance,  and  Lord  Eldon  held  that 
needless  prolixity  was  in  itself  impertinence.  It  has  been  thought 
that  irrelevant  and  redundant  matter  should  not  be  struck  out 
unless  a  party  is  aggrieved  oa'  prejudiced  thereby  (per  IIakris  in 
Hinds  V.  Griswold,  supra).  With  deference,  I  doubt  that  this  is 
so  to  the  fullest  extent.  As  to  scandalous  matter,  it  is  not  clear 
that  a  person  not  a  party  to  the  record  may  move  to  strike  it  out. 
And  the  court,  it  seems,  will  do  it  without  application  of  any  one. 
And  impertinence  in  an  answer  was  always  exceptionable.  My 
own  impressions  are,  that  as  to  scandalous  and  impertinent,  irrel- 
evant and  redundant  matter,  the  Code  has  not  in  any  respect 
changed  the  former  practice  in  equitij  cases.  Its  effect  on  what, 
before   the  '  Code,  w^ould   liave   been   cases  at  law,  is  not   now 

>  Isaac  V.  Velloman,  3  Abb.  ^U.  ^  See  reference  to  cases  in  this  opin- 

2  5  Id.  53,  at   Special  Term,  August,  ion,  wliich  are  omitted  m  tlie  above 

1850.  extract. 
31 


242  STATEMENT   OF   FACTS.  [CH.  IV. 

under  consideration.  If  this  view  is  correct,  the  adverse  party 
may  always  be  considered  aggrieved  by  scandalous,  irrelevant, 
impertinent,  and  redundant  matter  in  pleading.  I  think  one 
may   be   considered   aggrieved   by   the   intei*polation   of  matter 

into  the  pleadings  in  a  cause,  in  which  he  is  a  part}^,  for- 
[■^313]  eign  to  *the  case  ;  and  he  always  had  a  right  to  have  the 

record  expurgated  for  that  reason,  without  reference  to  the 
question  of  costs.  If  relevant  it  cannot  be  scandalous.  And  a 
few  unnecessary  words  will  not  maJce  a  pleading  irajpertinent. 
And  courts  should  be  liberal,  especially  until  our  novel  system  of 
pleading  shall  have  become  better  settled  and  understood.  Every 
fact,  direct  or  collateral,  tending  to  sustain  the  general  allega- 
tions of  the  bill,  may  be  inserted,  if  done  in  a  proper  manner." 

These  views  may  be  considered  as  embodying  the  settled  rule 
of  practice  throughout  the  State.*  In  a  later  case'  the  same  jus- 
tice who  delivered  the  opinion  in  Hynds  v.  Griswold  intimates 
that  he  would  not  gran4;  an  order,  striking  from  the  pleadings  un- 
important redundant  matter,  which  was  not  prolix^  and  does  not 
tend  seriously  to  prejudice  the  defendant  or  incumber  the  record. 
This  would  seem  to  establish  the  rule  very  nearly  where  it  stood 
under  the  old  equity  system.  Thus,  for  example,  an  exception 
for  impertinence,  founded  on  a  few  unnecessary  words,  was  not 
allowed,  unless  they  might  lead  to  the  introduction  of  improper 
evidence,^  and  a  short  sentence,  although  it  contained  no  fact 
or  material  matter,  and  was  only  inserted  in  a  pleading  from 
abundant  caution,  was  not  deemed  impertinent.     It  being  said  by 

the  court  that  the  practice  of  taking  exception  to  such 
[*314]  trivial  matter  is  not  *  to  be  encouraged,*  the  tendency  of 

the  decisions  of  our  courts,  since  the  Code  went  into  effect, 
with  some  few  exceptions,  is  the  same.  The  practice  of  taking 
exceptions  to  trivial  and  unimportant  allegations,  by  motion  to 
strike  them  out  as  redundant  and  irrelevant,  is  not  encouraged, 
and,  so  far  as  my  observation  extends,  these  motions  are  generally 
granted  in  those  cases  only  where,  first,  the  opposite  party  might 
in  some  respect  be  aggrieved,  should  the  redundant  matter  be 

J  [Fasnacht  v.  Stp7m,  53  Barb.  650  ;        ^  5  Paige,  533,  6  id.  339,  Story's  Eq. 

Dennis  v.  Snell,  50  id.  95].  PI..  §  267. 

^  Clark,  Jr.,  v.  Haricoocl  et  al.,  8        *  I'Edw.  Cli.  350 
How.  470. 


SEC.  II.]  THE   COMPLAITSTT.  243 

allowed  to  stand,  as  where  it  might  lead  to  the  introduction  of 
improper  evidence,  or  the  like,  or,  second,  where  the  matter  was 
needlessly  prolix,  or  would  tend  to  incumber  the  record.  Thus 
it  is  held  in  a  recent  case,'  that  matter  not  essential  to  establish  a 
cause  of  action,  if  it  be  such  as  may  be  proved  on  the  trial  in 
support  of  the  issue,  is  not  irrelevant  or  redundant,  and  Justice 
Welles  remarks,  in  that  case,  "  it  does  not  lie  with  the  defendant 
to  object  that  the  complaint  is  more  specific  than  the  law  re- 
quires, unless  some  established  rule  of  law  has  been  violated, 
such  as  the  statement  of  evidence  or  the  like.''  Upon  the  same 
principle  is  the  case  of  St.  John  v.  Griffith,''  in  which  certain  alle- 
gations of  fraud  were  refused  to  be  struck  out,  no  particular  injury 
appearing  to  result  from  the  superfluous  allegations  complained  of. 
The  court  observed  that  these  motions  were  not  to  be  encouraged, 
but  the  pleadings  were  to  be  liberally  construed  with  a  view  to 

substantial  justice  between  the  parties. 
[*315]       *This  doctrine  that  all  matters  proper  to  be  proved  in 
support  of  the  issue,  though  not  necessary  to  a  complete 
cause  of  action,  may  be  set  forth  in  the  complaint,  has  been  coun- 
tenanced by  several  other  decisions.     Thus  in  Follett  v.  Jewett' 
Justice  Selden  held  that  the  true  rule  in  regard  to  striking  out 
redundant  matter  was,  that  unless  it  is  clear  that  the  facts  and  cir- 
cumstances alleged  cannot  properly  be  received,  such  matter  will 
be  retained  until  the  trial.     So  also  in  Jlt/nds  v.  Griswold*  it 
was  held  by  Justice  Hakkis  that  any  thing  which  it  would  be  viate- 
rial  toprove  iijpon  the  trial  ought  not  to  be  deemed  irrelevant. 
This  language  was  qualified  by  the  same  judge  in  William  y. 
Hayes"  by  the  explanation  that  "facts  which  might  be  material 
to  the  issue,  as  tending  to  aggravate  or  mitigate  damages,  might 
properly  be  stated  in  the  pleadings,  though  not  necessary  to  con- 
stitute a  complete  cause  of  action."     Perhaps  this  qualification  is 
not   sufficiently  guarded,  and  indeed  it  may  be  said  to  be  not 
entirely  consistent  with  the  rule  laid  down  in  this  same  case,  which 
we  have  elsewhere  assumed  to  be  the  correct  rule,  namely,  that 
facts  which  go  to  establish  the  essential  facts  in  the  case  ought 

J  Root  V.  Foster,  9  How.  Pr.  37.  ■•  4  How  Pr.  70. 

'  1  Abb.  Pr.  43.  '  5  Id.  475. 

»  11  Leg.  Obs.  193  ;  see  also  5  Sand. 
660 


244  STATEMENT   OF   FACTS.  [CH.  IV. 

not  to  be  inserted.  [The  evidence  upon  wliich  a  charge  of  mal- 
ice in  procuring  an  arrest,  the  circumstances  attending  the  arrest, 
and  the  annoyances  to  which  plaintiff  was  subjected  in  making 
it,  cannot  be  pleaded  in  an  action  for  damages  for  the  arrest.- 

The  difficulty  ^all  be  found  to  consist  in  distinguishing  between 
"  facts  "  which  are  the  proper  subject  of  an  allegation  in  pleading, 
and  the  mere  evidence  of  those  facts,  which  it  is  universally  con- 
ceded cannot  be  alleged,  a  distinction  which,  as  has  been 
[*31 6]  ^remarked,  cannot  in  all  cases  be  very  clearly  pointed  out. 
Thus  it  is  not,  I  apprehend,  strictly  correct  to  say,  that  what- 
ever is  material  to  be  proved  on  the  trial  is  relevant ;"  nor,  that 
whatever  is  material  on  the  question  of  damages,  and  may  be 
proved,  may  also  be  properly  alleged  in  the  complaint ;  and  it  was 
certainly  going  far  to  say,  as  was  said  in  Root  v.  Foster,^  supra,  that 
in  an  action  of  assault  and  battery,  the  complaint  might  set  forth 
the  business  and  employment  of  the  parties,  the  object  and  intent 
of  the  assault,  with  an  allegation  that  it  caused  the  plaintiii"  to  be 
ridiculed,  etc.,  for  the  reason  that  the  motive  and  intent  with 
which  an  assault  and  battery  are  committed,  and  the  consequences 
resulting,  are  material  on  the  question  of  damages,  and  may  be 
proved.  No  doubt  it  is  proper  under  the  Code,  as  under  the  old 
practice,  and  perhaps  necessary  te  set  forth  in  the  pleading  such 
damages  as  are  not  implied  by  law  from  a  breach  of  a  contract, 
and  generally  all  consequential  damages,  which  do  not  necessarily 
arise  from  the  injury  complained  of.*'  The  principle  is  very 
clearly  illustrated  by  the  case  of  Slach  v.  Brown,''  in  which  the 
plaintiffs  claimed  to  recover  damages  for  the  loss  of  a  vessel  which 
had  been  run  down  by  another  through  carelessness  or  negligence, 
without  claiming  the  consequential  damages  ;  the  plaintiffs  were 
not  permitted  to  prove  that,  in  consequence  of  the  injury 
[*317]  sustained,  they  had  lost  atrip  of  their  vessel,  *etc.  "  The 
consequential  damages  were  special,"  said  the  court,  "  and 
did  not  necessarily  arise  from  the  injury  complained  of,  and  conse- 
quently were  not  implied  by  law.  To  prevent  surprise,  the 
pleader  should  have  stated  particularly  the  special  damages  sought 

1  Solis  V.  Manning,  37  How.  13.  '  *2  Barb.  S.  C.  525,  13  Wend.  64,  13 

«  See  Wooden  v.  htrew,  10  How.  Pr.  id.  390. 

48.  "  13  Id.  390. 
a  9  Id.  37. 


SEC.  II.]  THE   COMPLAINT.  245 

to  be  recovered."  Within  this  limitation,  the  dictum  in  Williams 
V.  Hayes  noticed  supra,  tliat  "  facts  which  miglit  be  material  to  the 
issue  as  tending  to  aggravate  or  mitigate  damages,  might  prop- 
erly be  stated  in  the  pleadings,"  can  be  safely  applied. 

But  where  the  damages  are  the  direct  consequences  of  the  injury 
complained  of,  I  suppose  matters  tending  to  aggravate  them  would 
be  regarded  as  not  issuable,  and  consequently  redundant.  Where 
various  matters  are  alleged  in  aggravation  of  damages,  they  ought 
not  to  be  particularly  set  forth  in  detail,  as  for  example  in  trespass, 
where  the  plaintiff  declared  that  the  defendant  broke  and  entered 
his  dwelling-house,  and  forced  open  the  closet  doors,  drawers, 
chests,  cupboards  and  cabinets  of  the  plaintiff',  it  was  held,  on 
special  demurrer  under  the  old  system,  that  breaking  and  entering 
the  house  was  the  principal  ground  of  action,  and  the  rest,  being 
matters  thrown  in  to  aggravate  damages,  need  not  be  more  partic- 
ularly specified.'  The  rule  in  actions  on  contract  was  equally 
clear,  that  damages  necessarily  resulting  from  a  breach  of  the  con- 
tract are  implied  in  law,  and  the  facts  going  to  show  such  damages 
need  not  and  ought  not  to  be  specially  alleged.  This  has  been 
held  to  apply  to  pleadings  under  the  Code  in  a  case  before  Justice 

WiLLARD,  arising  on  a  claim  for  damages  for  the  breach 
[*318]  of  a  contract  *  to  convey  land.'     The  plaintiff  set  forth  in 

his  complaint  certain  facts  tending  to  enhance  the  damages 
resulting  from  a  breach  of  the  contract.  The  court  held  this  to 
be  mere  matter  of  evidence,  upon  which  no  material  issue  could 
be  taken,  and  ordered  the  allegations  to  be  struck  out,  with  costs. 
And  it  has  been  also  several  times  held  that  matters  going  merely 
to  mitigate  damages  ought  not  to  be  pleaded.' 

[No  statement  of  special  damages  is  necessary  in  an  action  to 
recover  damages  for  neglecting  to  build  a  house,  where  defendant 
agreed  to  build  a  house  for  plaintiff,  and  plaintiff  to  convey  him 
a  house  and  lot  in  payment  therefor "  Otherwise  in  an  action  for 
loss  of  services  of  plaintiff's  son,  in  consequence  of  injuries  from 
defendant's  negligence,  if  plaintiff  seek  to  recover  for  prospec- 

'  Steph.  PI.  3il,  3  Wils.  293.  McAulay,  4  Trans.  App.  447,  5  Abb. 

5  MSS.  case  of   Van  Valkenburgh  v.  N.  S.  29,  Moak's  note  to  Clarke's  Ch. 

Fa7?.AS'c/ia««A;,  not  reported,  at  Saratoga  507,  w'/r^.  p.  502. 

Sr)ecial  Term.  December,  1851.  *  Laraway  v.    Perkins,    10    N.    Y 

^  Unless   pursuant  to  ii    165,  see  4  371. 
Sandf.  GG4,  6  How.  Pr.  15  ;  Button  v. 


246  STATEMENT   OF   FACTS.  [CH.  IV. 

tive  loss.*  So  in  an  action  for  allowing  a  privy  to  overflow, 
evidence  that  the  overflow  tainted  a  well  from  which  plaintiff  was 
in  the  habit  of  drawing  water  to  make  beer,  and  that  in  conse- 
quence thereof  a  brewing  was  found  unmerchantable,  is  not  admis- 
sible, unless  such  special  damages  are  pleaded."  But  an  action 
lies  for  such  an  injury  if  properly  averred.'  A  plaintiff  who 
brings  an  action  for  slander,  by  which  he  lost  his  customers  in 
trade,  cannot  prove  that  any  persons  not  named  in  his  complaint 
left  off  dealing  with  him  in  consequence  of  the  words  spoken.* 
So  in  an  action  for  slander  of  title,  whereby  plaintiff'  was  pre- 
vented from  obtaining  a  loan  on  a  mortgage  of  the  property,  or 
from  selling  it,  it  is  necessary  to  name  the  person  or  persons  who 
refused,  for  that  cause,  to  loan  or  purchase.*  An  agent  for  the 
collection  of  a  note,  who  fails  to  take  the  necessary  steps  to  charge 
the  indorser,  is  not  liable  to  the  owner  for  the  costs  of  an  unsuc- 
cessful suit  by  the  latter  against  the  indorsers,  unless,  by  some  mis- 
representation or  other  act,  he  induced  the  bringing  of  such  suit.* 
The  special  damages  must  be  the  natural,  and  not  the  remote,  con- 
sequence of  the  injury.  Although  plaintiff  would  have  been  em- 
ployed, if  he  had  been  able  to  go  at  a  certain  time,  but  was  not, 
because  not  able  to  attend  from  sickness  caused  by  an  imprison- 
ment, the  damages  are  too  remote.''] 

In  the  case  of  the  Rensselaer  and  Washington  Plank  Jioad 
Co.  V.  Wetsell,^  and  the  case  of  Steioart  and  others  v.  Bouton^  the 
same  principle  is  recognized  as  a  well-settled  jjrinciple  of  plead- 
ing.    Justice  Harris,  in  his  opinion  in  the  former  case,  says : 

'  Oilligan  v.  New  York,  etc.,  1  E.  D.  N.  S.  381.     For  an  extensive  collection 

Smith,  453,  460,  461.  of  cases  where  it  is  necessary  to  plead 

^  Solms  V.  Lias,  16  Abb.  311.  the  facts  showing  special  damages,  in 

^  Smith's   Man.   of   Com.   Law,  98  ;  order  to  recover  them,  see  Sedg.  Dam., 

Addison  on  Torts.  143,  144,  156,  199,  4th  ed.,  682  to  686,  and  additions,  p. 

204 ;    Tenant  v.   Oolding,  1  Salk.  21,  724 ;  Voorhies'  Code,  note  to  §  142,  title 

S.  0.  more  fullv,  2  Ld.  Ravm.  1089  ;  Special  Damages,  1  Chitty's  PI.  398  et 

Hoare    v.   Dickinson,   id.  1.568.      The  se*?.,  4  Conw.  Rob.  Pr.  292,301,336,444, 

declaration  in  Tenant  v.  Golding  will  472,  666,  704,  737,  738,  739,  740,  741, 

be  found  in  3  Ld.  Raym.  324.  799,  800,  802,  804.     Mr.  Estee,  in  his 

*  Hallock  V.   Miller,    2    Barb.    630,  Pleadings  and  Practice,  has  many  cases 

Townsend'a  Libel  and  Slander,  §g  345,  collected.     See  his  Index,  title  Special 

846,  but  see  Evans  v.  Harries,  1  Hurl.  Damages.     See,  also,  Abbott's  Forms 

&  Norm.  251 ;  Hartley  v.  Herring,  8  and  Pleadings.               ^ 

Term  R.  130;  McLoughlin  v.   Walsh,  '  Hoey  v.  Felton,  11  C.  B.  N.  S.  (103 

10  Irish  Law  R.  19,  contra.  Eng.  C.  L.)  142. 

«  Linden  v.  Qraham,  1  Duer,  670,  11  »  6  How.  Pr.  68. 

Leg.  Obs.  185.  »  Id.  71. 

^  Ayrault  v.  Pacific  Bank,  1   Abb. 


SEC.   II.]  THE   COMPLAINT.  247 

•'  The  motion  to  strike  out  redundant  or  irrelevant  matter  is  anal- 
ogous to  a  demurrer,  and  should,  I  think,  be  decided  upon  the 
same  principles.  If  the  matter  cannot  be  made  the  subject  of  a 
material  issue  it  has  no  business  in  the  pleading,  and  ought  not  to 
be  left  there  to  embarrass  the  opposite  party  and  the  court.  Mr. 
Justice  Hand  has,  in  Carpenter  v.  West^  ^■ptly  compared  this 
motion  to  exceptions  for  impertinence  under  the  former  chancery 
practice.  With  a  single  exception  I  think  the  analogy  will  hold. 
That  exception  has  already  been  noticed  in  several  cases.  It  is 
that,  under  the  chancery  practice,  matters  of  evidence  might 
properly  be  inserted  in  a  pleading,  while  they  are  excluded 
[*319J  *  by  the  theory  of  pleading  adopted  by  the  Code.  Any 
matter  which,  upon  exceptions  for  impertinence,  under 
the  chancery  practice,  would  be  struck  out  as  unnecessary  and  im- 
pertinent, should,  upon  motion,  be  struck  out  as  redundant  or 
irrelevant.  I  know  of  no  better  test  than  that  I  have  already 
mentioned,  which  is,  to  inquire  whether  the  matter  objected  to 
can  in  any  wa/y  he  made  the  subject^  or  form  a  part  ^  of  a  material 
issuer 

The  "  test "  referred  to  is  precisely  the  rule  long  recognized 
in  chancery,  with  the  exception  noticed  above.  In  the  consid- 
eration given  to  this  subject  on  a  former  page,'  it  was  intimated 
that  the  best  rule  to  ascertain  whether  matter  be  impertinent  ia 
to  see  whether  the  subject  of  the  allegation  could  he  put  in  issue, 
or  given  in  evidence  between  the  parties.  Or,  as  it  is  better  stated 
in  one  of  the  cases  there  cited,  where  the  action  is  for  relief  alone, 
the  cause  of  action  must  be  stated  in  such  a  manner,  that  the 
main  facts  upon  which  the  plaintiff's  right  to  relief  depends, 
"  may  be  put  in  issue,  and  triedP  Keeping  in  view  the  exception 
noticed  by  Judge  Harris  in  the  above  case,  that  the  discovery  is 
abolished  by  the  Code,  and  facts  can  no  longer  be  stated  merely 
as  matters  of  evidence  between  the  parties,  the  rules  in  regard  to 
expunging  scandalous  and  impertinent  matter  from  the  pleadings 
in  equity  may  be  safely  applied  under  the  Code."  This  distinc- 
tion seems  to  have  been  lost  sight  of  in  some  of  the  cases, 
[*320]  as  in  Burget  v.  Bissell^  where  in  an  action  *of  trespass, 

*  See  remarks  on  this  subject,  ante,    5  Paisre,  522,  6  id.  239. 
pages  72  et  seq.  »  5  How.  Pr.  192. 

*  4  Johns.  Ch.   437,   26   Wend.  63, 


248  STATEMENT   OF   FACTS.  [CH.  lY. 

for  taking  timber,  an  ans%ver  was  allowed  to  stand,  which,  ia 
addition  to  a  general  averment  that  the  title  of  the  tmiber  was 
in  the  defendant,  proceeded  to  set  forth  at  length  how  such  title 
arose. 

It  is  true,  as  was  intimated  in  that  case,  that  in  a  pleading  in 
equity  facts  which  might  be  material  in  establishing  the  general 
allegations  of  a  bill,  or  were  material  to  the  decision  of  the  suit, 
either  as  to  the  subject-matter  of  the  controversy,  the  relief,  or 
the  costs,  were  relevant  and  not  impertinent ;'  this  is  the  princi- 
ple recognized  in  Howard  v.  Tiffany,^  as  applicable  to  pleadings 
under  the  Code,  and  which  perhaps  may  be  regarded  as  a  settled 
rule.  But  it  is  not  true  that  the  plaintiff  may  now,  in  any  form 
of  pleading,  state  mere  matters  of  evidence  which,  though  proper 
to  be  given  in  support  of  the  issue,  cannot  themselves  be  made  a 
material  issue,  capable  of  trial.  This  was  held  by  the  same  justice 
to  be  the  rule  in  action  at  law  in  the  case  of  Sham  v.  Jane.^ 

The  exception  referred  to  seems  also  to  have  been  lost  sight  of 
in  the  case  of  the  Rochester  City  Barik  v.  Suydam,  before 
referred  to,*  wherein  it  was  held  that  certain  matters  ought  not  to 
be  stricken  out  of  the  complaint  "  as  embracing  matters  of  evi- 
dence merely,  for  the  reason  that  the  convenience  of  a  court  of 
equity  is  promoted  by  having  as  many  of  the  circumstances 
[*321]  appear  in  the  pleadings,  and  as  *few  in  the  proof  as  pos- 
sible," etc.  Although  in  the  subsequent  case  of  Wooden 
V.  Wajfle,"  the  same  justice  recognizes  and  applies  the  important 
distinction  alluded  to  above;  and  though  still  maintaining  the 
doctrine  that  the  Code  does  not  provide  a  uniformity  of  rules  for 
the  statement  of  equitable  as  well  as  legal  causes  of  action,  yet 
admits  that,  by  the  Code,  the  old  bill  of  discovery  is  abolished, 
and  that  pleadings  can  no  longer  be  used  for  the  purpose  of 
examining  the  opposite  party.  The  conclusion  in  that  case  is 
substantially  in  accordance  with  the  decisions  in  Carpenter  v. 
West,  the  Rensselaer  Plank  Road  Company  v.  Wetsel,  and 
similar  cases,  and  is  with  great  clearness  and  precision  expressed 
as  follows : 

'  4  Paige,  174,  5  id.  533.  *  5  How.  Pr.  216. 

«  3  Sand.  S.  C.  695.  *  6  How.  Pr.  145. 

*  4  How.  Pr.  119,  and  see  also  Root 
V.  Foster,  9  How.  37. 


SKC,  II.]  THE   COMPLAINT.  249 

"  Foi'inerly  there  was  no  adequate  mode  of  curtailing  pro- 
lixity in  a  chancery  pleading.  Exceptions  for  impertinence  would 
not  reach  many  cases  of  needless  detail.  The  rule  that  facts 
and  not  evidence  must  be  pleaded  had  no  application.  The 
party  had  a  right  to  make  his  pleadings  an  '  examination '  of  his 
adversary.  Of  course  he  might  insert  his  evidence  in  order  to 
obtain  an  admission.  If  the  matter  was  relevant,  it  was  not  imper- 
tinent, and  could  not  be  expunged.  The  Code,  however,  afibrds 
the  remedy  required.  The  pleading  can  no  longer  he  used  as  an 
examination.  All  that  is  inserted  for  that  purpose,  therefore,  may 
be  stricken  out  as  redundant.  Statements  may  be  redundant, 
which  are  neither  impertinent  or  irrelevant.  We  may 
[*322]  now  ^ apply  to  a/)i  equity  pleading  the  rule  that  mere  mat- 
ters of  evidence  7nust  not  he  ptleaded.,  although  in  a  sense 
somewhat  different  from  that  of  the  common  law,  not  as  confining 
the  party  to  the  statement  of  such  facts  only  as  are  essential  to  the 
cause  of  action  or  defense,  and  upon  which  a  material,  that  is,  a 
decisive  issue  may  be  taken ;  but  as  limiting  his  right  to  incumber 
the  record  with  details  which  have  no  other  bearing  upon  the  case 
than  to  establish  some  other  fact  affecting  the  equitable  right  in 
controversy." 

I  understand  this  to  mean  precisely  what  was  said  in  Howard 
V.  Tiffany^  supra^  and  to  recognize  the  old  chancery  rule  of 
pleading,  with  the  qualification  and  exception  stated  in  Carpenter 
v.  West.,  Rensselaer  Plank  Road  Co.  v.  Wetsel,  and  other  cases 
above  cited.  The  case  of  Stone  v.  De  Puga^  involving  a  similar 
principle,  was  decided  in  a  similar  manner,  and  a  part  of  a  com- 
plaint struck  out  for  seeking  to  discover  from  the  defendant  mere 
matters  of  evidence. 

The  late  case  of  Wooden  v.  Strew  '  is  fully  in  accordance  with 
these  principles,  and  goes  to  sustain  the  general  doctrine  that  the 
facts  and  not  the  evidence  thereof  must  be  pleaded.  It  was  an 
action  to  set  aside  a  deed  for  fraud,  and  the  plaintiff  in  his  com- 
plaint alleged  various  acts,  conversations,  omissions  and  inten- 
tions of  the  defendant,  tending  to  show  that  he  committed  the 
fraudulent  act  for  which  he  was  prosecuted.     Each   of   these 

'  3  Sand.  375.  «  10  How.  Pr.  48. 

2  4  Id.  681. 

32 


250  STATEMENT   OF   FACTS.  [OH.  IV. 

[*323]  allegations,  as  *was  stated  bj  the  court  in  that  case,  would 
have  been  relevant  testimony  upon  the  trial ;  but  neither 
of  them,  nor  all  combined,  were  the  fraudulent  act  complained  of. 
They  were  accordingly  struck  out  as  redundant  and  irrelevant. 
To  allow  these  allegations  to  stand,  says  the  court,  "  would  give 
the  complaint  the  full  effect  of  a  bill  of  discovery,  and  would  be 
an  examination  of  the  defendant  by  bill  and  answer ;"  a  proceed- 
ing which  is  not  allowed  in  any  form  of  the  Code. 

An  exception  to  a  matter  partly  pertinent  and  responsive  must 
be  overruled.  A  party  who  seeks  to  have  matter  expunged  must 
specify  the  parts  of  the  pleading  which  he  deems  irrelevant  and 
redundant.  Where  the  whole  complaint  is  objected  to,  a  portion 
of  it,  not  particularly  specified,  will  not  be  struck  out,  though  it 
be,  in  fact,  irrelevant  and  redundant.'  [An  entire  pleading  or 
defense  cannot  be  stricken  out  as  irrelevant  or  redundant ;  the 
objection  should  be  taken  by  demurrer.*]  It  was  held  in  the 
superior  court  of  "New  York,  in  the  case  of  J^ahricotti  v.  Launitz^ 
that  an  insufficient  complaint  was  not  irrelevant^  within  the 
meaning  of  section  160,  and  that  the  objection  must  be  taken  by 
demurrer.  But  if  the  objectionable  matter  in  the  complaint  be 
immaterial,  and  be  united  with  a  good  cause  of  action,  it  is  not 
demurrable ;  the  objection  miist  be  taken  by  motion  to 
[*324:]  strike  out.*  The  irrelevant  or  redundant  *  matter  which 
section  160  of  the  Code  authorizes  to  be  struck  out  is 
such  as  implies  that  the  pleading  contains  other  matters  which  are 
material.  Thus  in  Harlow  v.  Kamilton^  where  a  whole  answer 
was  bad,  on  a  motion  made  by  the  plaintiff  to  strike  out  a  por- 
tion of  it  as  irrelevant,  under  section  160,  leaving  another  portion 
which  contained  no  valid  defense  remaining,  the  motion  was 
denied,  the  court  holding  that  the  party  h4.d  mistaken  his  remedy ; 
his  proper  course  being  to  demur,  or  move  to  strike  out  the  whole 
answer  under  section  152  as  an  irrelevant  defense. 

Of  statement  of  facts  showing  rights  of  arrest.  — A  question 
has  arisen  and  has  been  considerably  discussed  by  the  courts, 

•  6  How.  Pr.  352.    See  Bank  v.  Ketch-  ^  3  Sand.  744. 

ing,  11  Abb.  435.  *  2  Sand.  702, 1  Duer,  245 ;  [  Ward.  v. 

'^  FamacM  v.  Stelm,  53  Barb.   50,  5  Ward,  5  Abb.  N.  S.  145]. 

Abb.  N.  S.  338 ;  GoUim  v.  Goggill,  7  «  6  How.  Pr.  475. 
Rob.  81 ;  Howell  v.  Knickerbocker,  etc., 
24  How.  475. 


SEC.  II.]  THE   COMPLAINT.  251 

■whether,  in  an  action  on  contract  where  the  debt  is  fraudulently 
contracted,  or  the  defendant  has  removed,  or  is  about  to  remove  his 
property,  with  intent  to  defraud  his  creditors,  or  in  any  other 
action  where  the  defendant  is  a  non-resident,  or  is  about  to  re- 
move from  the  State,  etc.,  the  plaintiff  is  at  liberty  to  make  aver- 
ments of  such  facts  in  his  complaint  for  the  purpose  of  enabling 
him  to  take  the  defendant's  body  in  execution.'  In  other  words, 
must  the  right  to  arrest  the  defendant  appear  in  the  pleadings ; 
or,  where  the  facts  conferring  such  right  to  arrest  constitute  no 
part  of  the  main  cause  of  action,  can  they  be  stated  in  the  plead- 
ings without  incurring  the  objection  of  irrelevancy  ?  The  ques- 
tion seems  to  be  settled,  both  upon  principle  and  authority,  in  the 

negative.  The  supreme  court  of  the  sixth  district,  at 
[*325]  general  term,  held,  that  *  where  the  cause  of  arrest  exists 

at  the  time  of  the  commencement  of  the  action  it  should 
be  stated  in  the  complaint,'  thus  confirming  what  was  intimated 
by  Justice  Edmunds  in  Barber  v.  Hubbard,^  and  by  Justice  Htjb- 
BARD  in  Gridley  v.  McCumher.*' 

Biit  this  case  was  taken  to  the  court  of  appeals  and  the  judg- 
ment of  the  supreme  court  reversed.*  In  the  opinion  of  the  court 
by  Justice  Watson,  it  is  said  that  the  legislature  never  intended 
to  oblige  the  party  alleging  the  fraud  to  embrace  it  in  his  com- 
plaint ;  and  the  case  of  Cheney  v.  Garhutt '  was  quoted  with  appro- 
bation. In  the  subsequent  case  oi Field  v.  Stone  and  Morse'' 
these  cases  were  recognized  as  furnishing  a  correct  rule  of  decision, 
and  it  was  held  that  allegations  of  fraud  in  making  a  contract, 
inserted  in  a  complaint  upon  the  contract,  are  redundant  and 
irrelevant,  and  will  be  struck  out  on  motion  f  such  a  complaint, 
however,  it  was  said,  might  be  amended  by  striking  out  these 
allegations,  leaving  the  simple  action  upon  the  contract  with- 
out the  ingredient  of  fraud.  This  decision,  with  that  of  the 
court  of  appeals  above  noticed,  is  fully  in  accordance  with  prior 
decisions  on  the  same  subject  made  at  both  general  and  special 
terms. 

J  Code,  §^  179  and  288.  «  5  How.  Pr.  467. 

2  Corwin   X.  Freeland,  6  How.  Pr.        ''8  How  Pr.  47,  Same  Case,  7  id. 
421.  13. 

'  3  C.  R.  156.  *  r  Wood.  v.  Henry,  40  N.  T.  124 ;  Gon- 

*  5  How.  Pr.  414,  3  C.  R.  211.  naughty  v.  Nichols,  43  id.  83.] 

*  2  Seld.  560. 


252  STATEMENT   OF   FACTS.  [CH.  IV. 

[*326]  Thus  in  Barker  *v.  Russel^  tlie  general  term  of  the  first 
district,  overruling  the  decision  in  the  same  case  at  special 
term,  laid  down  clearly  and  unequivocally  the  rule  that  the  plead- 
ings in  an  action  on  contract  should  not  show  the  facts  upon  which 
the  plaintiff  claimed  the  right  of  arresting  the  defendant.  The 
case,  upon  this  point,  fully  sustains  the  decisions  made  at  the 
special  term  in  Secor  v.  Roome^  Cheney  v.  Garbidt^  and  Masten 
V.  Scoville.*  And  the  point  may,  therefore,  be  regarded  as  set- 
tled. In  the  case  of  Lee  and  others  v.  Mias  and  others,  in  the 
New  York  superior  court,^  the  same  princij)le  was  recognized,  and 
Justice  Campbell,  after  advisement  with  all  the  other  justices  of 
the  court,  struck  out  as  irrelevant  and  redundant  from  a  com- 
plaint on  a  promissory  note,  certain  allegations  that  the  goods 
for  which  the  note  was  given  were  fraudulently  procured  from  the 
plaintiffs.  "  We  cannot  accede  to  the  idea,"  he  remarks,  "  that 
the  question  of  fraud,  where  it  is  in  no  wise  applicable  to  the 
judgment  to  be  rendered,  is  to  be  put  in  issue  by  the  pleadings  in 
order  to  be  tried  in  the  action,  merely  to  ascertain  whether  the 
case  is  one  in  w^hich  the  defendant  might  have  been  arrested." 
Similar  views  are  expressed  by  Justice  Harris  in 
[*327]  ^Masten  v.  ScovilL  above  cited  :  "  It  was  never  intended 
that  the  facts  which  rendered  the  defendant  liable  to  arrest, 
except  so  far  as  they  may  be  involved  in  a  statement  of  the  cause 
of  action  itself,  should  be  set  forth  in  the  complaint.  Should  any 
matter,  not  pertinent  to  the  cause  of  action,  be  inserted  in  the 
complaint,  merely  to  show  that  the  defendant  is  liable  to  arrest, 
as  for  example,  that  the  defendant  had  removed,  or  was  about  to 
remove,  his  property  with  intent  to  defraud  his  creditors,  I  can  see 
no  reason  why  it  should  not  be  treated  as  redundant  or  irrele- 
vant." 

Such  facts,  of  course,  cannot  for  any  purpose  be  material  to  the 
issue  or  traversable,  because  they  constitute  no  part  of  the  cause 

» 11  Barb.  S.  C.  303  ;  1  Code  R.  N.  S.  57.  New  York  special  term  in  March,  1853, 

In  the  case  of  Harris  v.  Cone,  10  How.  before    the  report  of  the  case   in  the 

Pr.  259,  Justice  Morris  is  reported  as  court  of  appeals,  which  established  a 

holding  the  doctrine  overruled  by  the  different  doctrine, 

general  term  in  Barker  v.  Bussel.   It  is  ^  3  C.  R.  1,  per  Jones. 

to  be  observed,  however,  that  though  ^  5  How.  Pr.  467,  per  Welles,  J. 

the  decision  has  been  but  recently  re-  *  6  id.  315,  per  Harris,  J. 

ported  (December,  1854),  it  was  made,  *  3  Sand.  737. 
or  at  least  the  case  was  heard  at  the 


SEC.  II.]  THE   COMPLAINT.  253 

of  action,  nor  do  the}',  as  in  cases  of  an  equitable  nature,  have 
any  bearing  whatever  on  the  particular  relief  demanded.  The 
kind  of  execution,  as  was  very  properly  said  by  Justice  Welles, 
in  Cheney  v.  Gar'hatt,  above  cited,  is  not  what  was  intended  by 
the  relief  to  be  demanded  in  the  complaint.  The  judgment  of 
the  court  determines  the  relief  granted,  but  the  judgment  does 
not  undertake  to  specify  in  what  manner  it  shall  be  carried  into 
execution.  The  execution  is  a  separate  and  distinct  thing  from 
the  judgment,  and  the  plaintiff,  it  seems,  at  his  own  risk,  must 
determine  when  and  in  what  cases  he  is  entitled  to  issue  an  execu- 
tion against  the  body  of  the  defendant.'  Allegations  merely 
going  to  show  the  right  of  arrest  are,  therefore,  neither 
[*328]  constitutive  of  a  cause  of  action,  nor  do  *they  have  any 
bearing  upon  the  relief  sought,  and  consequently  are  not 
capable  of  being  put  in  issue  and  tried.  If  inserted  in  the  com- 
plaint, they  will  be  struck  out  on  motion  as  redundant."  There 
are,  doubtless,  some  objections  to  this  practice,  and  plausible 
reasons  can  be  urged  why  the  judgment  record  should  show  on  its 
face  enough  to  authorize  an  execution  against  the  body.  But, 
until  some  such  provision  is  expressly  made  by  statute,  the  prac- 
tice may  be  regarded  on  the  authority  of  the  above  cases,  as  well 
upon  principle,  to  be  settled  to  the  contrary. 

[The  following  allegations  have  been  held  irrelevant : 
Where  the  complaint  contains  a  good  cause  of  action  against 
the  parties,  allegations  as  to  another  cause  of  action  in  the  same 
count  affecting  the  defendants  and  other  persons  not  parties.' 
Many  allegations  as  to  a  conspiracy.*  So  in  an  action  against  a  com- 
mission merchant  for  the  proceeds  of  a  sale  of  goods  received  from 
plaintiffs,  an  answer  that  the  property  was  shipped  in  the  name 
of  the  plaintiff  by  mistake  ;  that  it  should  have  been  made  in  the 
name  of  third  persons  who  had  made  advances  to  plaintiff  for  a 
portion  of  the  property ;  and  that,  by  the  arrangement  between 
plaintiff  and  such  third  persons,  the  property  was  to  be  shipped 

'  As  to  this  point,   see  cases  above  NicJwls,  42  id.  83,  87,  89,  note  ;  Atocha 

cited,  and  also  Squire  v.  Flynn,  8  Barb.  v.  Garcia.  15  Abb.  303.     See  Matter  of 

S.  C.  169.  Pnttermn,  2  Benedict,  155  ;   Wa;rren  v 

V  Humphrey  v.  Brown,  17  How.  481 ;  Wendell,  13  Abb.  187.] 

Muklan  v.    Doti/,  30  id.  236  ;    Smith  ^  Lord  v.  Vreeland,  24  How.  316,  13 

V.   Knapp,    30  "N.    Y.  589 ;   Wood   v.  Abb.  195,  15  id.  122. 

Henry,    40    id.    124;   Connaughty   v.  *  Mnsdna -v.  Clark,\l  Ahh.  l^S 


254  STATEMENT   OF   FACTS.  [CH.  IV. 

in  the  name  of  tlie  latter  and  sold  on  their  account.  It  is  a  prop- 
osition to  litigate  as  a  voluntary,  or  a  supposed,  claim  of  third  per- 
sons not  parties  to  the  suit.' 

The  following  have  been  held  not  to  be  irrelevant : 

A  defense  that  supplementary  proceedings  have  been  instituted 
against  the  plaintiff'  by  a  judgment  creditor  in  which  defendant  has 
been  enjoined  from  paying  plaintiff;''  a  defense  which  arose  after 
suit,  if  otherwise  valid.'] 

The  reader  should  consult  Mr.  Townsend's  and  Mr.  Wait's  notes 
to  section  160  of  Yoorhies'  Code,  and  Wait's  Code,  as  to  when  the 
motion  lies  and  the  practice  to  be  pursued. 

Third.  What  matters  need  not  he  alleged.  —  Besides  the  rule 
at  common  law,  that  evidence,  or  the  circumstance  merely  tend- 
ing to  prove  the  material  facts,  should  not  be  pleaded,*  there  are 
some  other  rules  tending  to  produce  certainty,  and  to  prevent 
obscurity  and  confusion  in  the  pleadings,  which  may  be  usefully 
applied  to  pleadings  under  the  Code. 

Thus  it  is  laid  down  as  a  general  rule,  that  it  is  not  necessary 
to  state  matter  of  toJdch  the  court  takes  notice  ex  officio,''  as,  for 
example,  the  principles  of  the  common  law,  or  enactments  by 
public  statute,'  for  these  the  judges  are  bound  ofl&cially  to  notice ; 
and  by  the  Code,  a  private  statute  is  sufficiently  pleaded  by  refer- 
ring to  its  title,  and  the  day  of  its  passage.''  ■  There  are  various 
other  matters  of  which  the  court  judicially  takes  notice ;  as  of 
the  division  of  the  State  into  counties,  judicial  districts, 
[*329]  etc.,*  the  meaning  of  English  words,  terms  of  art,  *  legal 
w^eights  and  measures,  the  privileges  of  officers  of  the 
court,  etc.,  etc.,*  and  it  is  unnecessary  to  allege  these  matters  in 
pleading. 

It  is  not  necessary  to  state  matter  which  would  come  more  projp- 
erly  from  the  other  side,  or  to  anticipate  the  answer  of  the  adver- 
sary. It  is  sufficient  that  the  pleading  should  contain  a  good 
'prima facie  case  without  reference  to  possible  objections  not 

>  Auhrey  v.   Fiske,    36    How.    279,  *  20  Wend.  57, 1  Denio,  151. 

Court  of  Appeals.  ^  Com.  Dig.  Pleader. 

2  Carpenter  v.  Bell,  19  Abb.  258.  «  3  Comst.  188, 12  Wend.  79. 

3  Carpenter  v.  Bell,  19  Abb.  258.   See  •>  Code,  §  163. 
Moak's     note    to    Clarke's     Ch.    507  *  By  statute. 

[mary.  p.  502) ;  Short  v.  Hooker,  40  How.        «  See  1  Chit.  PI.  216,  226. 
420. 


SEC.  II.]  THE   COMPLAIlSrT.  255 

yet  urged.'  As  in  a  complaint  on  a  bond,  or  other  contract,  it  is 
unnecessary  to  allege  that  the  defendant  was  of  full  age  at  the 
time  of  the  contract."  The  plaintiff  is  not  bound,  in  his  com- 
plaint, to  negative  a  possible  defense,  but  the  complaint  is  good 
if  it  show  2i  py'ima  facie  right  to  recover,  and  so  the  rule  has  been 
held  in  pleadings  under  the  Code.'  Thus,  in  an  action  on  a  note 
not  within  the  statute,  a  special  consideration  need  not  be  alleged, 
but  the  want  of  consideration,  if  it  is  intended  to  be  relied  upon, 
should  properly  be  set  up  by  the  other  side. 

So,  under  the  old  system  *  [and  so  it  has  been  held  under  the 
Code.^J  When  a  memorandum  or  writing  is  necessary  to  the 
validity  of  the  promise,  it  need  not  be  pleaded  to  be  in  writing, 
though  it  must  be  proved  to  be  so  on  the  trial.  And,  by  the  old 
system  also,  in  case  of  a  debt  barred  by  the  statute  of  limitations, 

or  discharged  under  the  insolvent  act,  the  declaration  need 
[*330]  not  show  that  the  debt  was  *  barred  or  discharged,  and 

then  set  forth  a  new  promise  to  avoid  the  effect  of  the 
statute,  but  the  objection  was  left  to  come  from  the  other  side 
[and  such  is  the  practice  under  the  Code°]. 

It  is  not   necessary  to  allege  what  the  laio  will  pre- 
[*331]  sv-me. — An  apt  illustration  of  this  rule  is  given  in  "^the 

case  of  an  action  for  slander  imputing  theft ;  the  plaintiff 
need  not  aver  that  he  is  not  a  thief,  because  the  law  presumes  his 
innocence  till  the  contrary  be  shown.'' 

The  rule  is  also  aptly  illustrated  by  the  case  of  Maynard  v. 
Talcott^  an  action  brought  since  the  Code,  in  which  it  was 
decided,  on  demurrer,  that  the  complaint  need  not  aver,  or  show 
affirmatively,  that  the  debt  for  which  action  is  brought  had 
become  due  at  the  time  of  the  commencement  of  the  action.  The 
court  will  not  intend  that  suit  was  brought  before  cause  of  action 
accrued  for  the  purpose  of  supporting  a  demurrer ;  but,  if  the 
court  is  to  presume  either  way,  the  legal  presumption  will  be  that 
the  debt  was  due  before  the  commencement  of  the  action.     The 

'  Steph.  PI.  350.  ^Butler  v.  Mason,    16    How.   54G, 

2  Steph.  PL  359.  Sa?ids  v.  St.    John,    23    id.    140,    36 

*  Doughty  v.  Dedin,  1  Smith's  N.  Y.  Barb.  6'38,  affirmed  in  Court  of  Ap 
Com.  PL  627.  peals,  June,  1805.     See    Van  Nist  r 

*  4  Johns.  237,  15  id.  424,  6  Hill,  33.  Talmage,  17  Abb.  99. 

5  25   Barb.   365  ;    17  id.   141 ;    ante,        •>  1  Chit.  PL  226,  2  Wils.  147. 
marg.  }■).  207,  and  cases  cited.  *  11  Barb.  S.  C.  569. 


256  STATEMENT   OF   FACTS.  [CH.  IV. 

true  rule,  it  is  presumed,  is  precisely  tlie  same  as  under  the  old 
practice,  and  if  the  complaint  show,  on  its  face,  that  the  cause  of 
action  is  not  yet  due,  it  is  a  good  cause  of  demurrer ;  but  no 
demurrer  will  lie  simply  because  it  is  not  affirmatively  shown 
that  the  debt  is  due,  that  being  a  matter  which  the  law  will  pre- 
sume,' 

It  is  not  necessary  to  allege  circumstances  necessarily  implied?  — 
As,  if  a  man  plead  that  he  is  heir  to  A,  he  need  not  allege  that 
A  is  dead,  for  it  is  implied/  Where  a  complaint  on  a  promissory 
note  set  forth  that  the  payee  indorsed  the  same  for  the 
[*332]  plaintiff,  a  *  demurrer  that  the  complaint  did  not  allege 
that  the  plaintiff  was  the  lawful  holder  of  the  note  was 
held  to  be  frivolous.*  And  it  is  said  that  there  is  no  exception 
to  the  rule  that  the  holder  of  a  promissory  note  presumptively 
establishes  his  title  as  owner  by  the  production  of  the  note,  and 
proof  of  the  signatures  of  the  maker  and  indorser.*  The  owner- 
ship is  implied  in  law,  and  need  neither  be  averred  nor  proved.' 
The  same  may  be  said  in  regard  to  the  fact  of  delivery.''  The 
rule  of  pleading  that  circumstances  necessarily  implied  need  not 
be  alleged,  was  of  familiar  application  both  at  law  and  in  equity. 
It  is,  perhaps,  best  illustrated  in  that  class  of  contracts  noticed  on 
a  preceding  page,*  in  which  a  consideration  is  implied  in  law,  as 
bonds,  promissory  notes,  etc.  The  implied  consideration  was 
never  required  to  be  set  forth  or  proved  as  an  independent  fact, 
distinct  from  the  instrument  or  obligation  itself.  So  an  agree- 
ment to  convey  lands  may  be  iinjplied  from  the  terms  of  the 
written  instrument,  although  it  contain  no  express  contract  on 
the  part  of  the  defendant ;  and  if  th(i  writing  is  set  forth  in  licBC 
verha,  the  defendant's  contract  is  necessarily  implied ;  so  held  in 
Richards  v.  Edich^  under  the  Code ;  [otherwise,  if  introduced,  to 
qualify  a  prior  grant."] 

But,  in  actions  at  law,  a  matter  necessarily  implied,  though 
not  set  forth  in   the  pleadings,   was  traversable,   and  an   issue 

^  See  cases  cited  by  Hoyt,  J. ;  May-  *  Chadwiclc  v.  Booth,  13  Abb.  249. 

nard  v.  Talcott,  11  Barb.  570.  '  Sawyer  v.  Warner,  15  Barb.  S.  C. 

2  Steph.  PI.  353,  and  cases  cited.       •  283. 

»  2  Saund.  PL  305.  «  Ante,  marg.  p.  220. 

*  Appleby  v.  Mkins,  2  Sand.  673.  »  17  Barb.  260;  [Ifewell  v.  WJieeler,  4 

°  James  v.  Chalmers,  5    Sand.    52 ;  Rob.  255.] 

affirmed,  6  N.  Y.  209.  '"  Netoell  v.  Wheeler,  4  Rob.  255. 


SEC.  II.]  THE   COMPLAINT.  257 

[*333]  might  be  taken  upon  it.'  The  *  rule  was  also  of  frequent 
application  in  equitable  pleadings.  Thus,  in  a  bill  for 
partition  of  real  estate,  it  was  not  necessary  to  aver  that  the 
complainant  was  in  possession  /  it  was  sufficient  to  allege  that  he 
was  seized  as  tenant  in  common,  etc.  ;  the  possession  being  neces- 
sarily implied  from  the  fact  of  seizure." 

The  subject  of  setting  forth  damages  has  already  been  consid- 
ered." Such  damages  as  naturally  result  from  the  breach  of  the 
contract,  or  the  injury  complained  of,  are  imjMed  in  law,  and 
they  need  not,  and  ought  not,  to  be  specially  alleged  in  the  com- 
plaint. But  those  which  result  consequentially  from  the  injury, 
are  not  implied  in  law,  and  must  be  particularized  and  specially 
stated. 

When  a  subject  comprehends  a  omdtiplicity  of  Tnatters^  it  is 
not  necessary  to  set  them  forth  in  detail,  hut  where  great  prolixity 
would  he  avoided,  or  tJie  allegation  on  the  other  side  must  reduce 
the  matter  to  a  certainty,  a  general  mode  of  pleading  is  allowed.*' 
On  a  promise  by  defendant  to  pay  for  such  necessaries  as  the 
plaintiff  should  furnish  a  third  person,  the  plaintiff  alleged  that 
he  had  provided  necessaries  to  the  amount  of  a  certain  sum ;  this 
was  held  good  without  specifying  what  the  necessaries  were.' 
The  general  rule  above,  however,  is  held  subject  to  a  qualification 
equally  general,  that  where  there  is  any  thing  specific  in 
["334J  the  subject,  though  consisting  in  *a  number  of  particulars, 
they  must  be  enumerated ;  as  in  justifying  a  general 
charge  of  swindling,  or  claiming  a  forfeiture  on  the  ground  of 
non-compliance  with  a  condition  to  furnish  water  to  such  as  should 
be  willing  to  take  it.'  ISTo  greater  particularity  is  required  than 
the  nature  of  the  thing  will  conveniently  admit.  As  in  an  action 
for  injury  to  goods,  if  the  quantity  or  other  description  of  the 
goods  cannot,  under  the  circumstances,  be  conveniently  ascer- 
tained, such  certainty  will  not  be  required. 

So  upon  similar  principles,  in  a  recent  case  under  the  Code,*  a 
complaint  on  an  agreem^ent  for  the  conveyance  of  land,  seeking 
a  decree  for  specific  performance,  was  held  good,  which  did  not 

1  See  post,  ch.  5,  §  11.  "  Stepli.  PI.  257. 

*  Jenldns  v.  Van  Schaack  and  Wife,        ^  3  Bulst.  31. 

3  Paige.  342.  «  9  Wend.  351. 

*  Ante,  pages,  282, 816-318,  marg.pp.         '  Richards  v.  Edick,  17  Barb.  260. 

33 


258  STATEMENT   OF  FACTS.  [CH.  TV, 

Bet  forth  a  particular  description   of  the  land,  but  described  it 
generally  as  so  many  acres  of  the  defendant  hing  and  being  in 
Abinsrton,  in  the  State  of  Illinois.      It  was  insisted  in  that  case 
that  the  complaint  ought  to  have  supplied  the  circumstances  which 
would  furnish  materials  and  guidance  for  drawing  a  decree  or 
judgment  directing  a  conveyance,  with  a  definite  description,  so 
that  an  officer  might  go  upon  the  ground  and  select  the  farm. 
But  the  court  was  of  the  opinion  that  this  degree  of  certainty  was 
not  indispensable  in  a  complaint.     The  complaint,  it  was  held, 
contained  facts  sufficient  to  constitute  a  cause  of  action,  and  that 
was  sufficient  upon  demurrer ;  if  the  defendant  required  a  greater 
degree  of  certainty,  he  must  seek  his  relief  by  motion  to 
[*335]  make  the  pleading  *more  definite  and  certain  by  amend- 
ment.    The  same  rule  may  be  extended  to  most  other 
similar  cases ;  though,  it  is  thought,  it  should  not  be  held  to  apply 
to  an  action  to  recover  property  in  specie,  in  which  a  particular 
description  —  sufficiently  certain  at  all  events,  to  enable  the  prop- 
erty to  be  identified  —  is  of  the  substance  of  the  action. 

Special promsions  of  the  Code. —  There  are  some  special  pro- 
visions of  the  Code,  which,  in  certain  cases,  relieve  a  party  from 
the  necessity  of  making  so  full  and  circumstantial  a  statement  as 
was  heretofore  essential  in  a  good  pleading  in  such  cases.  The 
provisions  have  already  been  incidentally  noticed  in  the  preced- 
ing pages  of  this  work,  and  it  is  scarcely  necessaiy  to  refer  to 
them  again.  They  are  comprised  for  the  most  part  in  the  four 
following  provisions :  1st.  In  pleading  a  judgment,  it  is  unneces- 
sary to  state  the  facts  conferring  jurisdiction,  but  the  pleader  may 
state  generally,  that  such  judgment  was  duly  given  or  made.' 
2d.  Performance  of  conditions  precedent ;  the  facts  showing  per- 
formance need  not  be  set  forth,  but  it  may  be  stated  generally, 
that  the  party  duly  performed."  3d.  Private  statute  ;  it  is  suffi- 
cient to  refer  to  such  statute  by  its  title  and  the  day  of  its  pas- 
sage.' 4th.  Libel  and  slander;  it  is  now  no  longer  necessary  to 
state  extrinsic  facts  for  the  purpose  of  sliowing  the  application 
to   plaintiff  of  the  defamatory  matter  out   of  which   the   cause 

'  Code,  §  161,  ante,  marg.  pp.  270        »  Id.,  §  163,  ante,  marg.p.  370. 
and  271. 

'  Id.,  §  163.  ante,  marg.  pp.  234  and 
235. 


8EC.   II.]  THE    COMPLAIIN-T.  259 

of  action  arose.'      These  rules   tend   in   a   consideiable 
[*33GJ   "degree  to  simplify  and  abridge  the  pleadings  in  this  class 
of  cases,  and  in  reference  to  the  subjects  to  which  they  are 
applicable. 

Fourth.  How  the  facts  must  l)e  stated. —  The  manner  of  stat- 
ing the  facts  in  pleading  under  the  Code,  so  far  as  respects  pre- 
cision  and  certainty  of  allegation,  is  much  nearer  the  equity  than 
the  common-law  system  ;  for,  besides  those  general  rules  dispensing 
with  every  thing  like  technicality  and  form,  the  liberal  system  of 
amendments  allowed  by  the  Code  seems  to  invite  a  still  greater 
relaxation  of  that  precise  and  rigorous  formality  which  the  com- 
mon law  enjoined. 

In  equity  cases  the  facts  were  not  required  to  be  set  forth  "  with 
such  decisive  and  categorical  certainty  "  as  at  common  law."  And 
this,  I  apprehend,  is  equally  true  of  the  manner  of  stating  facts 
in  pleading  under  the  Code.  Perhaps  it  may  be  said  that  the 
general  features  of  the  system  established  by  the  Code  bear  a  still 
closer  resemblance  to  the  rules  of  pleading  in  admiralty  cases, 
which  are  drawn  from  the  civil  law,  and  the  latter  certainly  may 
be  consulted  and  studied  with  profit,  by  those  who  desire  to  attain 
a  more  thorough  and  scientific  knowledge  of  the  subject.  Thus,  in 
admiralty  pleadings,  the  greatest  liberality  is  practiced,  and  the  sub- 
stance merely  being  regarded,  as  in  the  civil  law,  any  neces- 
[*337]  sary  *amendments  are  allowed.'  The  *same  technical 
minuteness  and  precision  are  not  required  as  at  common 
law,  but  all  that  is  necessary  is  that  the  cause  of  action  should  be 
clearly  set  forth,  so  that  a  plain  and  direct  issue  uisij  be  made 
upon  the  charge,  and  the  evidence  must  be  confined  to  the  mat- 
ter in  issue." 

Thus  in  the  case  of  the  schooner  Iloppet,*  Chief  Justice  Mar- 
shall remarks  that  "  a  substantial  statement  of  the  offense  upon 
which  the  prosecution  is  founded,  must  be  the  rule  of  every  court 
where  justice  is  the  object ; "  and,  while  holding  that  this  general 
rule  is  perfectly  applicable  to  courts  of  admiralty,  sitting  for  the 
trial  of  offenses  against  municipal  law,  yet  denies  that  "  those 

'  Id.,  §  164,  ante,  marg.  p.  371.  ^  5  Rob.  Adm.  323,  Dunl.  Adm.  438, 

«  Lube's  Eq.  PL  18.  n ;  Story's  Eq.  PI.     439,  1  Wheat.  U.  S.  R.  9. 

20f).  s  7  Cranch's  U.  S.  R.  389. 

8  Dunl.    Adm.  383,  4  Mason,   513,  3 

Wash.  C.  C.  484. 


*J60  STATEMENT   OF   FACTS.  [CH.  IV. 

teclinical  niceties  which  are  imimportant  in  tlieraselves,  and,  stand- 
ing only  on  precedents  of  which  the  reason  cannot  be  ascertained, 
should  be  transplanted  from  the  courts  of  common  law  into  the 
courts  of  admiralty."  In  the  case  of  the  Merino/  Mr.  Justice 
"Washington  alludes  to  the  same  principle,  namely,  that  common- 
law  formal  precedents  are  not  to  be  regarded  in  admiralty  infor- 
mations, adding,  that  "the  material  inquiry  in  the  latter  cases 
being,  whether  the  oifense  is  so  set  forth  as  clearly  to  bring  it 
within  the  statute  on  which  the  information  is  founded."  And 
in  the  case  of  the  Palmyra,"  Judge  Stort  remarks :  "  There  is, 
indeed,  in  admiralty  proceedings,  little  ground  to  insist 
[*338]  upon  much  strictness  of  averment,  because,  in  *  however 
general  terms  the  oifense  may  be  articulated,  it  is  always 
in  the  power  of  the  court  to  prevent  surprise,  by  compelling  more 
particular  charges  as  to  the  matters  intended  to  be  brought  for- 
ward by  proofs.  In  general,  it  may  be  said,  that  it  is  sufficient 
in  libels  in  rem  for  forfeitures,  to  allege  the  oifense  in  the  terms 
of  the  statate  creating  the  forfeiture."  [The  same  rule  has  been 
held  applicable  to  pleadings  under  the  Code.'] 

In  these  admiralty  or  civil-law  forms  of  pleading,  however, 
the  analogy  between  which  and  the  general  rules  enunciated  by 
the  Code  we  are  now  tracing,  though  the  same  technical  strict- 
ness is  not  required  as  at  common  law,  yet  there  are  certain  well- 
established  principles  which  govern  the  manner  of  making  alle- 
gations in  such  cases  that  are  never  lost  sight  of.  The  courts 
have  always  endeavored  to  keep  these  proceedings  within  some 
kind  of  rule."  Libels,  for  example,  should  state  the  subject-mat- 
ter with  a  reasonable  degree  of  certainty,  and  with  such  aver- 
ments as  admit  of  distinct  answers  being  made  to  them  ;*  and, 
unless  the  particular  facts  intended  to  be  relied  on  are  stated  in 
the  libel,  they  will  not  be  considered  at  issue.'  Nor  is  the  blend- 
ing of  distinct  or  opposite  causes  of  action  allowable  in  libels, 
under  the  admiralty  practice,  in  which  respect,  also,  it  is  strik- 
ingly analogous  to  the  Code.  Thus,  in  causes  of  damage,  the 
libel  must  state  each  distinct  act  of  injiu-y  in  a  distinct  article, 

1  9  Wteat.  U.  S.  R.  391.  *  Bimna  Pastora,  4  Wheat.  U.  S.  R. 

« 12  id.  1.  53. 

"  Cole  V.  Jessup,  10  How.  515,  10  N.  "  The  Bostons,  1  Sumn.  338. 

Y,  96.  '  The  IsdbeUa,  1  Paine,  1. 


SEC.  II.  J 


THE   COMPLAINT.  261 


with  reasonable  certainty  of  time  and  place.'     So,  also,  in 
p339]  a  *  libel  for  wages,  the  facts  should  be  stated  in  distinct 

articles,  according  to  the  nsual  course  of  admiralty  pro- 
ceedings.'' It  is  not  allowable  to  introduce  into  a  libel  in  rem^ 
and  quasi  for  possession,  other  matters  of  an  entirely  different 
character ;  such  as  an  account  of  the  ship's  earnings,  with  claims 
of  a  partner  for  his  advances  and  wages  as  master.'  Nor  can  the 
rights  of  the  United  States  be  blended  with  the  rights  of  an  in- 
former in  the  same  libel.'  Nor  can  a  general  prize  allegation  be 
joined  with  an  information  and  seizure  for  the  infringement  of  a 
statute."  If,  in  a  libel,  the  allegations  are  not  drawn  with  accu- 
racy and  reasonable  certainty,  exceptions  may  be  taken ;  as  in  a 
lil:)el  for  wages,  the  distinct  allegations  of  hiring,  voyage,  etc' 
Or,  if  the  facts  proved  do  not  sustam  the  allegation  of  the  libel, 
it  will  be  dismissed,  as  where  a  libel  is  filed  claiming  a  forfeiture 
of  a  vessel,  and  the  tacts  do  not  authorize  the  forfeiture  alleged, 
but  show  an  offense  against  other  provisions  of  the  same  law 
under  which  the  forfeiture  is  alleged  to  have  accrued ;  or  where 
a  libel  charges  the  seizure  to  have  been  made  on  water,  when  it 
was  made  on  land,  such  a  libel  will  not  support  a  verdict  and 
judii'iiient  thereon,  but  must  be  dismissed  or  amended.'' 

It  will  be  seen,  therefore,  that  the  pleadings  in  cases  of 
[*3-i0]  libel  in  the  admiralty  courts  are  closely  analogous  *to 

pleadings  under  tlie  Code.  Only  the  essential  facts  need 
be  alleged,  without  regard  to  particular  forms,  either  in  contract 
or  tort ;'  less  certainty  than  what  belongs  to  proceedings  at  com- 
mon law  will  sustain  a  decree,  but  the  allegations  must  point  out 
the  fads  so  as  to  give  reasonable  notice  to  the  party  to  enable  him 
to  shape  his  defense.  If  the  pleadings  are  too  defective  to  enable 
the  court  to  pronounce  a  final  decree  on  the  merits,  the  objections 
may  be  taken  even  on  appeal,  and  the  decree  will  be  reversed, 
and  the  cause  sometimes  remanded  with  directions  to  permit  the 
pleadings  to  be  amended ;"  for,  proceedings  in  admiralty,  it  is 

'  Treadwell  v.  Joseph,  1  Sumn.  390.  «  United  States  v.  Tlie  Hunter,  Pet. 

»  Ornb  V.  Toicnsend,  4  Mason,  541.  C.  C  10. 

3  Steamboat    Orleans  v.  Phaihus,  11  ''  TJie  Sarah,  8  Wheat.  394. 

Pet.  175.  *  Hall's  Prac.  207,  138,  6  How.  U.  S. 

*  The  Emulous,  1  Gallis.  563.  434. 

»  T7te  Dmoji,  2  id.  306.  'Case    of    The  Divine  Pastoia,   4 

Wheat.  U.  S.  R.  52 


262  STATEMENT   OF   FACTS.  [CH.  IV. 

said,  must  contain,  at  least,  a  general  allegation  of  sucli  a  nature 
as  will  apply  to  the  case.*  It  will  be  observed  that  similar  powers 
as  to  revising  a  judgment  for  a  fatal  defect  in  stating  a  cause  of 
action,  and  also  similar  discretionary  powers  in  allowing  amend- 
ments are  conferred  on  our  courts  by  the  provisions  of  the  Code. 

Though  so  great  a  degree  of  technical  precision  is  not  required 
by  the  Code,  as  in  a  common-law  action,  and  though  the  formal 
parts  of  pleading  are  abolished,  and  with  them  whatever  may  be 
regarded  as  a  mere  mode  or  form  of  expression,  such,  for  example, 
as  may  be  found  in  all  the  old  precedents  in  the  formal  com- 
mencement and  the  conclusion  of  the  pleading,  yet  there  are 
certain  logical  rules  relative  to  the  racunner  of  statement^ 
[*341]  as  well  as  to  *the  substance  of  the  pleading,  founded  in 
reason  and  good  sense,  which  have  grown  up  under  the 
old  system,  both  in  law  and  equity,  and  which,  though  not  for- 
mally recognized  by  the  Code,  may  still  in  many  cases  be  usefully 
and  safely  applied  under  our  present  practice."  A  few  of  these 
rules  respecting  the  mode  and  manner  of  stating  causes  of  action 
in  a  complaint  will  be  here  noticed.  It  may  be  added  that  much 
of  what  is  said  on  this  point  will  apply  equally  to  the  mode  and 
manner  of  stating  a  defense  by  the  defendant  in  his  answer.  \\\ 
treating  therefore  of  the  defendant's  answer  in  the  following 
chapter,  it  will  be  merely  necessary  on  this  branch  of  the  subject 
to  refer  to  what  is  here  said. 

It  was  a  general  rule  at  common  law  that  a  pleading  must  not 
be  double,  that  is,  that  the  plaintiff  could  not  allege  in  support  of 
a  single  demand  several  distinct  matters,  by  any  one  of  which  the 
demand  might  be  sufficiently  supported.^  This,  however,  did 
not  mean  that  if  he  had  several  distinct  causes  of  action  of  a 
similar  quality  or  character  against  the  same  parties,  he  was  not 
allowed  to  include  them  all  in  one  suit ;  on  the  contrary,  he  was 
permitted  to  do  so,  though  each  separate  claim  or  demand  con- 
stituted a  separate  part  of  the  declaration,  technically  called  a 
count.  The  matters  set  forth  in  each  count  should  constitute 
but  one  distinct  subject  of  action  and  no  more ;  and,  though 
this  cause  of  action  might  consist  of  a  number  of  circumstances, 

1  Ibid.  3  gteph.  PI.  281. 

•  Oihon  V.  Levy,  2  Duer,  170. 


SEC.  II.]  THE   COMPLAINT.  263 

[*342]  yet,  if,  togetlier,  they  constituted  but  *one  connected 
proposition  or  entire  point,  the  pleading  was  not  double. 
A  violation  of  this  rule  was  called,  in  technical  lansuao-e, 
duplicity^  and,  as  was  said  by  Allen,  J.,  in  Cahoon  v.  The  Bank 
of  TJticd  (in  which  the  rule  was  recognized  as  applicable  to  the 
Code),  "duplicity  does  not  depend  upon  the  fact  that  two  or 
more  causes  of  action  or  defenses  are  well  stated.  All  but  one 
may  be  defectively  and  insufficiently  stated,  and  yet  the  pleading 
be  double.  If  the  party  sets  forth,  and  relies  upon,  more  than 
one  cause  of  action  or  defense,  his  pleading  will  be  double ;  and 
if  they  cannot,  under  the  Code,  be  united,  his  pleadings  will  be 
bad  on  demurrer."  So,  also,  in  illustration  of  the  same  rule,  is  the 
case  of  Ptigsley  v.  Aiken^  holding  that  the  common-law  principle 
which  forbids  the  union  of  a  cause  of  action  against  a  testator  with 
a  cause  of  action  against  his  executors  personally,  is  unchanged  by 
the  Code,  and  that  such  a  pleading  is  still  bad  for  duplicity. 

A  similar  rule  prevailed  in  equity,  namely,  that  two  or  more 
distinct  subjects  could  not  be  included  in  the  same  suit ;'  though 
two  or  more  causes  of  action  arising  out  of  the  same,  or  even  dis- 
tinct transactions,  if  of  the  same  nature,  might  be  joined  against 
the  same  parties.*  The  offense  against  this  rule  was  termed  Tnul- 
tifariousness,  and  rendered  the  bill  liable  to  demurrer.' 
[*343]  Thus,  a  bill  against  an  *  executor  for  a  legacy,  and  for  an 
individual  debt  of  the  executor,  is  multifarious  ;*  though  a 
bill  is  not  multifarious  where  it  sets  up  one  sufficient  ground  of 
relief,  joined  with  another  distinct  but  untenable  claim.''  So,  too, 
at  law,  mere  immaterial  matter  could  not  operate  to  make  the 
pleading  bad  for  duplicity,  even  though  the  surplusage  was  relied 
upon  by  the  party  pleading  it.'  The  proper  way  in  such  a  case 
is  to  object,  not  to  the  whole  pleading,'  but  to  such  parts  of  it 
as  are  immaterial,  which,  under  the  Code,  can  be  done  only  by 
motion  to  strike  out.  In  equity,  the  term  "multifarious"  applied 
not  only  to  complaints  in  which  there  was  a  misjoinder  of  distinct 
and  independent  causes  of  action,  but  also  to  the  misjoinder  of 

*  How.  Pr.  134,  and  cases  there  cited.        «  Pugsley  v.  Aiken,  14  Barb.  S.  C 

*  14  Barb.  114,  and  cases  there  cited.     116,  and  cases  there  cited. 

[See  ante,  marg.  pp.  153,  191.]  '  5  Paige,  137, 3  Barb.  Ch.  433. 

3  1  Barb.  Ch.  Pr.  40.  »  Steph.  on  PI.  259. 

*  Id.  432,  5  Paige,  137.  »  1  Comst.  223. 

*  5  Paige,  65. 


Sf31  STATEMENT   OF   FACTS.  [CH.  IV. 

parties.'  We  have  lieretofore  had  occasion  to  consider  each  of 
these  subjects  under  their  appropriate  titles,  and  need  only  refer 
the  reader  to  what  was  there  said/  and  see  further  as  to  misjoin- 
der of  actions,  jpost,  ch.  vii,  §  2. 

The  Code  seems  to  have  adopted  similar  rules  against  duplicity 
and  Tnultifariousness  in  pleading.  In  the  section  providing  for 
the  union  of  causes  of  action,  legal  as  well  as  equitable,  in  the 
same  complaint,  it  is  provided  that : 

"The  causes  of  action,  so  united,  must  all  belong  to  one  of 

these  classes,  and  except  in  actions  for  the  foreclosure  of 

[*344]  mortgages,  must  affect  all  the  parties  *to  the  action,  and 

not  require  different  places  of  trial,  and  must  he  separately 

stated.^ 

The  fifth  subdivision  of  section  144  allows  a  demurrer  on  the 
ground  "  that  several  causes  of  action  have  been  improperly 
united."  This  does  not  refer  to  the  improper  statement  in  a  single 
count  of  several  distinct  causes  of  action,  which  might  be  properly 
joined  if  stated  separately,  but  only  to  the  misjoinder  of  different 
causes  of  action  in  the  same  complaint.  [The  remedy  is  by  motion 
to  strike  out  all  the  allegations  not  necessary  to  a  single  cause  of 
action,  on  the  ground  that  the  count  contains  more  than  one  cause 
of  action  not  separately  stated.*  The  moving  party  may  elect  as 
to  which  cause  of  action  he  will  strike  out  the  allegations.*  It 
has  been  said  that  if  the  causes  of  action  are  separately  stated,  but  not 
nunibered,  the  remedy  is  to  return  the  pleading  and  point  out  the 
objection,*  but  we  doubt  the  correctness  of  the  doctrine,  as  the  plead- 
ing is  certainly  good  as  to  one,  at  least,  of  the  causes  of  action  or 
defense.  There  is  no  technical  mode  of  separating  and  distinguish- 
ing causes  of  action  or  defenses.  Any  mode  which  apprises 
[*349]  the  party  is  sufficient.'']  *Each  count,  or  to  use  the  language 
of  the  Code,  each  statement,  is  required  singly  to  contain  a 
good  cause  of  action,  and  one  only.*  Thus  claims  for  damages  for 
distinct  injuries  to  different  chattels,  at  different  times,  or,  in  like 

'  Story's  Eq.  PI.,  §  274, 1  Comst.  221.  Hunter  v.  Powell,  15  How.  221 ;  Badger 

«  Ante,  ch.  2  and  ch.  3.                           .  v.  Benedict,  4  Abb.  176,  1  Hilt.  414. 

»  Code,  4^  167.  ^  Waller  v.  Raskan,  12  How.  28  ;  Bene- 

*  Ante,  marg.  p.  197,  post  marg.  pp.  diet  v.  Seymour,  6  id.  21)8 ;  Dorman  v. 

677,  683  ;  Aiulerson  v.  Hill,  53  Barb.  Kellam,  4  Abb.  202. 

238  ;  Henderson  v.  Jackson,  9  Abb.  N.  "^  Corhin  v.  George,  2  Abb.  465 

S.  293  ;  Bass  v.  Comstock,  38  N.  Y.  21,  '  Hall  v.  McKechnie,  22  Barb.  244. 

$6  How.  382 ;  Colton  v.  Jones,  7  Rob.  164 ;  ^Ante,  marg. p.  197,  post,  marg.  p.  683. 


SEC.  II.]  THE   COMPLAINT.  265 

manner,  different  claims  for  damages  for  conversion  of  property, 
should  be  set  forth  in  separate  statements,  in  the  manner  indi- 
cated in  Benedict  v.  Seymour^  supra.  And  so,  also,  as  to  separate 
demands  in  actions  on  contract,  as  for  example,  for  two  or  more 
promissory  notes  ;  [but  if  there  are  many  separate  causes  of  action 
of  the  same  nature,  they  rnay,  for  the  sake  of  brevity  and  con- 
venience, be  thrown  into  one ;  as,  for  instance,  a  penalty,  daily, 
for  running  a  ferry  boat  contrary  to  statnte.']     A  claim  on  note, 

and  one  on  book  account ;  a  claim  for  work  and  labor,  and 
[■*350]  a   claim   for  money   lent   and   advanced,  or  ''^  paid    and 

expended  for  plaintiff,  these  and  like  causes  of  action, 
though  properly  united  in  the  same  complaint,  being  each  a  com- 
plete cause  of  action  in  itself,  should  be  carefully  separated 
into  distinct  statements,  so  as  to  avoid  the  objection  of 
duplicity  or  multifariousness.  A  similar  doctrine  is  held  in  rela- 
tion to  the  statement  of  a  set-off  by  way  of  counterclaim  in  the 
answer." 

But  it  has  been  adjudged  under  the  Code,  that  where  negli- 
gence is  the  ground  of  action,  claims  for  injury  to  the  plaintiff''8 
person  and  his  property,  resulting  from  the  alleged  negligence, 
constitute  but  a  single  cause  of  action,  and  should  not  be  sepa- 
rately stated.  The  Code  does  not  abolish  the  causes  of  action  as 
they  existed  before  the  passage  of  that  act,  nor  does  it  in  any  man- 
ner define  what  should  constitute  a  cause  of  action.  It  leaves  all 
this  matter  as  it  was  at  common  law  or  in  equity,  before  the  Code 
was  passed.' 

[A  complaint  does  not  unite  several  causes  of  action  merely 
because  it  sets  forth  several  grounds,  on  either  of  which,  defend- 
ant would  be  liable,*  otherwise,  i-f  not,  the  history  of  one  occur- 
rence or  cause  of  action  ;'  a  complaint  which  contains  a  count  uj^on 
a  common-law  and  one  upon  a  statutory  liability  is  proper,  though 
both  are  based  upon  the  same  injury ;'  and  if  several  causes  of  action 
are  sought  to  be  united,  on  the  ground  that  they  arose  out  of  the 

*  Langwortliy  v.  Knapp,  4  Abb.  115.     3  Caines,  160  ;  Boycev.  Brown,  7  Barb, 
'■'  Ranney  v.  Smith,  G  How.  Pr.  420,    81 ;  Otis  v.  Boss,  11  N.  Y.  Leg  Obs.  343,. 

and  see  post,  chaj).  IV,  5^2.  en.  T.  Sup.   Ct.,  12  Barb.  466,  4  N, 

-  Uoioe    V.    Peckham,    6    How.    Pr.  T.  253. 

229.  6  Ehle  v.  nuller,  10  Abb.  287. 

*  Durant  v.  Oardner,  10  Abb.  445, 1  «  Swift  v.  Appicbone,  23  Mich.  253. 
Burr.  Pr.  (2d  ed.)  172  ;  Strong  v.  Sinith, 

34 


266  STATEMENT   OF   FACTS.  [CH.  IV. 

same  transaction,  a  general  allegation  of  snch  fact  is  insufficient ; 
the  facts  showing  this  should  be  pleaded.'  Matter  will  not  be 
Btricken  out  if  it  would  mutilate  the  pleading  unnecessarily,  bj 
breaking  up  sentences  or  clauses  which  ought  to  stand  or  fall 
together.^]  If  matter  entirely  irrelevant  be  mixed  up  with  a  single 
good  cause  of  action,  or  unnecessary  statements  with  the  facts 

which  constitute  a  single  connected  proposition,  or  distinct 
P351]  point ;'  or  an  untenable  "^ claim,  or  insufficient  cause    of 

action  be  united  with  a  good  one,*  then  a  motion  to  strike 
out  such  objectionable  matter  may  be  made. 

The  Code  requires  that  the  statement  of  facts  should  not  only 
constitute  a  single  cause  of  action,  but  also  that  it  should  be 
"  plain  and  concise,"  and  "  without  unnecessary  repetition."^  In 
an  early  case,  under  the  new  practice,  a  complaint  in  an  action  for 
false  imprisonment  stated,  at  great  length,  all  the  circumstances, 
and  the  particular  instrumentality  by  which  the  plaintiff  was 
restrained  of  his  liberty,  and  it  was  held  that  it  should  all  be  struck 
out,  and  that  the  mode  of  stating  a  cause  of  action,  heretofore  in 
use,  was  all  that  was  necessary.'  The  facts  in  the  complaint  must 
he  not  only  concisely  stated,  but  they  must  be  so  expressed  as  to 
be  plain,  that  is,  intelligible  to  those  who  understand  the  language, 
and  hence  the  words  are  to  be  understood  in  their  ordinary  and 
popular  sense.'  The  statements  must  also  be  made  without 
unnecessary  repetition.  In  the  Stochhridge  Iron  Co.  v.  Mellen, 
et  al.^  the  complaint  contained  six  counts  substantially  according 
to  the  forms  of  a  common-law  declaration  in  an  action  against 
common  carriers,  each  count  being  really  the  same  cause  of  action, 
slightly  varied  as  to  form  and  manner  of  statement.  This  was 
held  bad ;  it  being  remarked  by  the  court,  that  "  to  sustain  such 
a  pleading  would  be  to  hold   that   the   party   is   at   liberty   to 

choose  between  common-law  pleadings,  and  the  pleadings 
[*352]  *  prescribed  by  the  Code."     In  that  case,  the  plaintiffs 

were  allowed  to  amend,  by  making  their  complaint  con- 
form to  the  requirements  ot  the  Code,  i. «?.,  by  setting  forth  a  single 
cause  of  action,  or  in  default  thereof,  all  the  counts  except  the 

>  Flynn  v.  Bailey,  50  Barb.  73.  «  Shavn  v.  Jane,  4  How   119,  2  Code 

«  Franklin  v.  Keeler,  4  Paige,  382.  R.  69. 

8  3  Barb.  S.  C.  125,  7  Cow.  450.  '  Mann  v.  Morewood,  5  Sandf.  557. 

*  5  Paige's  Ch.  137.  ^  5  How.  Pr.  439.     [See  ante,  marg, 

*  Code,  §  142,  sub.  2.  f.  199.] 


SEC.  II.]  THE  COMPLAINT.  367 

first,  were  ordered  to  be  struck  out  as  reduudant  aad  j^levant. 
The  case  of  Sipijerly  et  A  v.  The  Troy  and  Boston  Bmlroad  Co 
furnishes  another  example  of  the  same  defective  manner  of  state- 
ment     The  plaintiffs,  in  two  counts  of  their  complamt  set  forth 
facts  constituting  a  cause  of  action  under  the  general  railroad  act, 
fofdlages  b;  reason  of  a  failure  of  the  defendants,  in  makmg 
their  rail^ad,  to  restore  certain  highways  to  their  former  state 
etc  •  and  in  two  other  counts,  upon  substantially  the  same  fa  ts, 
claimed  treble  damages  of  the  defendants  for  the  injuries  to  the 
tlTway,  mider  the  Revised  Statutes.    This  was  held  "  unnecessary 
repetition  "     The  plaintiffs,  it  was  said,  upon  their  own  showing, 
have  but  two  causes  of  action,  and  yet  these  are  put  forward  in  the 
complaint,  and  the  defendants  are  required  to  defend  themselves 
as  though  there  were,  in  fact,/o«.  distinct  causes  of  ax=tion,  upon 
which  le  plaintiffs  expected  to  recover.     This  cannot  be  regarded 
as  a  statenLit  of  the  facts  constituting^  the  plamtiffs'  causes  of 
s,aWon''mtlumtunnMessaryrepetitwn:' 

A  Jimilar  decision  was  made  in  the  case  of  CkurMl  v 
a««Aa,- wherein  a  complaint  setting  forth  the  same  cause  of 
action,  in  a  variety  of  different  counts  or  statements,  was 
r*353]  considered  a  defective  ^pleading  under  the  Code,  and  a 
motion  to  set  aside  the  complaint  granted  for  that  cause 
It  is  well  said  by  Justice  Hand,  in  Boyoe  v.  Brown,   that 
"good  pleading  should  be  maUrial,  dngU,  true,  v^arr^uom, 
cLm,  and  oeHain  as  to  a  common  intent  as  to  i^me,p^a^, 
person  and  inantity,   and  not  redundant  or  '^rgnm.ntntr.e-^ 
These  constituted  some  of  the  main  rules  under  the  o  d^y^^m 
which  tended  to  produce  certainty  in  the  pleading;  and  the  same 
general  principles  governed  pleadings  in  eqmty.      ^  «ect  m 
feme  of  these  particulars,  however,  was  merely  a  ™^"e.  ot  foim 
to  be  reached  by  special  demurrer.    Thus,  it  was  a  ge"eia    ™ 
of  pleading  that  the  time  and  place  of  every  matenal  tiavemble 
fact  must  be  stated."    The  time,  however,  and,  in  transitory  actions, 

.  9H0W.  Pr.  83,  .Mo  appeal  at    -f  ^f/^/J.trour  P  S' ^^. 

•  See,  also,  to  the  »ame  effect,  I-Kft^S  7  Ba^f-  g^'-p™j  „, 

T.    VandirbiU.  10  How.  Pr.  15o    m  ,  f "'/ f/g^ 

whicli  case  the  plaintiff  was  compelled  4  D^'"".  »"■ 
to  elect  which  count  he  would  retain. 


268  STATEMENT   OF   FACTS.  [CH.  IV. 

the  place,  were,  in  general,  considered  as  forming  no  material  parts 
of  the  issue,  so  that  one  time  or  one  place  might  be  alleged  and 
another  proved.  Both  were  required  to  be  inserted,  in  order  to 
give  reasonable  certainty  and  clearness  to  a  general  statement  of 
facts,  and  an  omission  to  insert  them,  being  matters  of  form,  must 
be  reached  by  special  demurrer,  and  the  defect  was  cured  after 
verdict  or  judgment.  By  the  Code,  however,  matters  of  form  are 
no  longer  objectionable,  and  an  omission  to  state  the  time  and 

place  is  no  longer  a  ground  of  demurrer,*  unless  in  state- 
[*354]  ments  of  local  description,  *  where  it  becomes  necessary 

to  prove  the  place,  or  in  cases  in  which  the  time  or  place" 
happens  to  form  a  material  point  in  the  merits  of  the  case,  and 
becomes  part  of  the  substance  of  the  issue.'  And  where,  from  an 
omission  to  state  the  place  or  time,  or  to  specify  quality,  quantity 
or  value,  the  complaint  fails  to  state  the  cause  of  action  with 
reasonable  clearness  and  certainty,  the  court,  under  section  160  of 
the  Code,  will  order  the  pleading  to  be  made  definite  and  certain 
by  amendment.*  The  Code  specifies  the  cases  in  which  this  may 
be  done,  namely,  "  when  the  allegations  of  a  pleadmg  are  so  in- 
definite or  uncertain  that  the  precise  nature  of  the  charge  or 
defense  is  not  apparent.''^  This  embraces  all  cases  where  the 
pleadings  are  aonbiguous  or  doubtful  in  Tneaning,  or  where  there 
is  a  repugnancy  that  is  an  inconsistency  with  other  statements  in 
the  same  pleading,  or  where  they  are  unintelligible  by  reason  of 
the  omission  of  material  words,  in  all  which  eases  under  the  old 
system  the  pleading  was  bad  in  form  and  might  be  objected  to  by 
special  demurrer.  ]^ow,  however,  the  defect  can  be  reached  only 
by  motion  to  the  com't,*  before  demurring  or  answering,  and 
within  twenty  days  from  the  service  of  the  defective  pleading." 
[If  amended  complaint  is  served,  on  leave  given,  the  defendant 
may  move  within  twenty  days  from  its  service.']  Or,  perhaps, 
the  court,  on  its  own  motion  at  the  trial,  may  require  the 
pleading  to  be  made  more  definite  and  certain." 

'  Finnerty  v.  BarTcer,  7  L.  0.  316.  N.  S.  439  ;  Johnson  v.  Mallory,  2  Rob 

2  See  6  Barb.  S.  C.  439.  681 ;   Watt  v.  Watt,  id.  685 ;  Smit/i  v, 

2  Stepb.  PI.  295.  Trafton,  3  id.  709 ;  Quintard  v.  Newton, 

<  7  L.  0.  316.  5  id.  72]. 

6  Hufx.  Bennett,  2  Sandf.  702 ;  Beek-  «  Rule  43,  4  How.  Pr.  68,  2  Rob.  613 

man  v.  Plntner,  15  Barb.  350  [Olcott  v.  '  Walker  v.   Granite  Bank,  1  Abb. 

Carroll,  39  N.  Y.  436 ;  Kerr  v.  Hayes,  N.  S.  406. 

35  id.  331 ;  Arrietta  v.  Morrisey,  1  Abb.  «  7  Barb.  S.  C.  90,  91. 


SEC.  II.]  THE   COMPLAIISTT.  269 

The   statements   of  the  cause    of  action    should   also 
[*355]  *be  direot  and  positive,^  and  not  hy  way  of  alignment 

or  inference.'^  In  an  action  of  trespass  for  taking  and 
carrying  away  the  plaintiff's  goods,  the  defendant  pleaded  that 
the  plaintiff  never  had  any  goods,  upon  which  the  court  remarked, 
"  this  is  an  infallible  a/rgument  that  the  defendant  is  not  guilty, 
and  yet  it  is  no  plea.'"  Facts,  and  not  mere  conclusions  of  law, 
must  be  alleged,  and  this  principle  has  been  repeatedly  and  uni- 
formly held  applicable  to  tlie  theory  of  pleadings  adopted  by  the 
Code.  The  general  rule  on  this  subject  to  be  drawn  from  all  the 
cases*  is  well  stated  by  the  court,  in  Mann  v.  Moorewood, 
wherein  it  is  said,  that  "  a  complaint  must  set  forth  all  the 
material  and  issuable  facts,  which  are  relied  on  as  establishing  the 
plaintiff's  right  of  action,  and  not  the  inferences  from  those  facts, 
which,  under  the  advice  of  his  counsel,  he  may  deem  to  be  the 
conclusions  of  law.  To  draw  the  proper  conclusions  from  the 
facts  which  are  relied  on  as  constituting  a  cause  of  action,  or  a 
valid  defense,  is  the  exclusive  province  and  duty  of  the  court,  and 
to  enable  the  court  to  discharge  that  duty,  the  facts  themselves  — 
not  the  conclusions  that  are  supposed  to  flow  from  them  —  must  be 
stated  in  the  pleading,  without  prolixity,  but  with  reasonable  full- 
ness and  certainty."     In  that  case  it  was  held  that  an  averment 

in  a  complaint  of  overpayment,  must  be  construed  to 
[*356]  mean  an  overpayment  in  money ^  and  *could  be  sustained 

only  by  proof  of  that  fact.  The  plaintiff  could  not  sup- 
port such  an  averment  by  proof  of  an  overpayment  of  stock  at  an 
agreed  value,  even  though  it  were  true,  as  he  insisted,  that  this 
was  equivalent  in  law  to  a  delivery  in  money,  corresponding  in 
amount  with  the  agreed  value  of  the  stock.^  [Nor  is  it  necessary 
to  allege  facts  which  will  be  implied  from  those  alleged.  °J 

It  was  held  in  Russell  v.  Clajpp^  that  an  allegation  in  a  plead- 
ing that  a  party  to  an  action  is  not  the  real  party  in  interest  was 
bad  on  demurrer.  The  pleadings  must  state  such  facts  as,  when 
established  by  proof,  will  enable  the  court  to  say  that  the  yarty  is 

'  It  may  be  on  "  information  or  *  See  on  this  subject,  ante,  marg 
belief."     See  post,  marg.  p.  357.  pp.  244,  245,  and  cases  tlaere  cited. 

'•^  Stepli.  PI.  384,  7  Barb.  S.  C.  85,  and  ^  See  on  this  subject,  ante,  murq 
sases  there  cited,  9  Barb.  S.  C.  297.  pp.  249-253,  254-265. 

3  Steph.  PI.  384.  «  Case  v.  Carroll,  35  N.  Y.  385. 

'  7  Barb.  S.  C.  482. 


270  STATE3IEi^T   OF   FxVCTS.  [CH.  IV. 

not  the  real  pai'ty  in  interest.  The  same  thing  was  subsequently 
decided  in  Bently  v.  Jones^  and  the  principle  held  applicable  to 
an  allegation  in  the  plaintiif' s  reply.  So,  too,  in  McMurray  v. 
Thomas,^  a  general  allegation  of  fraud,  without  setting  out  the 
facts  showing  the  existence  of  the  fraud,  was  held  bad,  as  merely 
alleging  a  conclusion  of  law  without  naming  the  existence  of 
facts  by  which  it  is  supported,  and  as  presenting  no  fact  upon 
Avhich  an  issue  can  be  taken.'  And  in  Bridge  v.  Payson*  it  is 
said,  that,  where  a  fact  is  stated  in  a  pleading,  which,  of  itself, 
constitutes  a  cause  of  action,  or  defense,  the  intent  to  rely  upon 
it  is  a   necessary  inference,  and  no  allegation  to  that  eiFect  is 

requisite. 
[*35Y]  *When  it  is  said  that  the  allegations  must  be  direct  and 
positive,  it  is  not  meant  that  every  allegation  in  the  com- 
plaint must  be  set  forth  absolutely  inform  as  upon  the  personal 
knowledge  of  the  plaintiff.  This  was,  indeed,  customary  in  com- 
mon-law pleading,  and  it  has  also  been  very  strictly  applied  in 
one  case  under  the  Code,^  in  which  it  was  held  that  allegations 
should,  in  all  cases,  be  set  forth  positively  in  form,  and  not  on 
information  and  helief.  In  that  case  the  words  "  on  information 
and  belief"  were  struck  out  as  redundant  wherever  they  occurred 
in  the  complaint,  not  upon  the  ground  that  the  facts  were  pre- 
sumptively within  the  knowledge  of  the  party,  and,  therefore, 
should  be  positively  stated ;  but,  upon  the  general  principle  that 
allegations  are,  in  all  cases,  to  ha  positively  made,  as  in  common- 
law  pleadings,  and  not  upon  information  and  belief.  The  form 
of  verification  prescribed  by  the  Code  was  thought  to  present  no 
obstacle,  inasmuch  as  the  effect  and  true  construction  of  the  oath 
was,  that,  though  the  matters  are  all  in  form  positively  alleged, 
yet  the  party  swears  that  such  as  are  within  his  own  knowledge 
only  are  true,  and,  as  to  the  residue,  he  is  informed,  or  believes 
them  to  be  true.  I  am  not  aware  that  the  decision  has  been  fol- 
lowed ;  on  the  contrary,  it  is  believed,  that  the  uniform  practice 
is  the  other  way,  and  that  allegations  set  forth  on  information 
and  belief  are  not  only  sufficient,  but  proper,  in  all  cases  where 

'  4  How.  Pr.  303.  *  5  Sandf.  316. 

*  5  How.  Pr.  14.     \Barher  v.  Morgan,        ^  Pref^cott  v.  Bole,  7  How.  Pr.  281 
51  Barb.  116.J  per  Sill,  J. 

«  See,  also,  1  Code,  91,  4  How.  Pr. 
98 ;  and  see  post,  ch.  5,  j5  3. 


SEC.  II.]  THE   COMPLAIlSfT.  271 

the  fact  alleged  is  not  witliin  the  knowledge  ot  the  party.  In- 
deed, it  is  held,  that  an  allegation  on  belief  alone  is  suffi 
[*358]  cient ;  the  statement  *  that  a  party  hcUeves  a  feet  to  be 
true,  being  equivalent  to  a  statement  "  according  to  his 
knowledge,  information  and  belief."*  The  same  thing  was  held 
in  a  later  case  in  the  ISTew  York  superior  court,*  and  the  reason 
given  for  it  by  Duee,  J.  (with  whom  Oakley,  J.,  concurred),  ie 
stated  to  be  that  "  the  object  of  the  Code  is,  that  every  suit  shall 
be  prosecuted  and  defended  in  good  faith,  and  this  is  secured  if 
the  material  allegations  in  the  pleading  are  believed  by  the  party 
to  be  true.  As  the  averment  of  his  belief  is  not  traversable,  a 
statement  of  its  grounds  is  immaterial."  But  if  a  fact  pleaded  is, 
presumptively,  within  the  knowledge  of  the  party,  it  should  not 
be  stated  on  his  information  or  belief;  and,  in  a  case  of  gross 
abuse,  doubtless,  the  court  would  correct  it,  as  was  done  in  Rich- 
ardson V.  Wilton,^  where  a  defendant  denied  knowledge  or  infor- 
mation sufficient  to  form  a  belief  whether  he  had  committed  the 
assault  charged  by  the  plain tifl',  and  the  answer  was  stricken  out 
as  sham  and  frivolous.* 

It  was,  also,  and  still  is,  a  rule  that  pleadings  must  not  he  in  the 
aiternatwe  or  hypothetical ;  as  where  it  was  charged  that  the  de- 
fendant wrote  and  published,  or  catcsed  to  be  written  and  pub- 
lished, a  certain  libel,  this  was  held  bad  for  uncertainty."  And, 
again,  in  an  action  against  a  jailer  for  an  escape,  the  de- 
[*359]  fendant  cannot  plead  'that,  if  the  prisoner  escaped,  "^  he 
escaped  without  the  knowledge,  and  against  the  will,  of 
the  defendant,  and,  if  such  escape  was  made,  the  prisoner  volun- 
tarily returned.  The  defendant  cannot  thus  plead  hypothetically 
that,  if  there  has  been  an  escape,  there  has  been  also  a  return. 
He  must  either  stand  on  an  averment  that  there  has  been  no 
escape,  or  that  there  has  been  one,  after  which  the  prisoner  vol- 
untarily returned.'  This  rule  has  been  repeatedly  applied  to 
pleadings  under  the  Code,  but  mainly  to  those  on  the  part  of  the 
defendant,  which  will  be  hereafter  noticed  '     The  great  principle, 

'  noioell  V.  Frazer,  1  C.  R.  N.  S.  271,  ^  8  Mod.  130. 

6  How.  Pr.  221.  6  j  gos.  &  Pul.  413. 

'  Radway  v.  Mather,  5  Sandf.  654.  ''  See,  among  other  cases,  McMurry 

*  4  Sandf.  708.  v.    Thomas,  5    How.    14 ;    Sayhs    v. 

*  See  subject  of   denial  to  answer  TFboden,  6  id.  85  ;  Lewisv.  Kendall,\(\. 
discussed,  post,  ch.  5,  t^  2.  59 ;  Wiex  and  wife  v.  Fanning,  9  id.  544. 


273  DEMAND   FOE   KELIEF.  [CII.  IV. 

however,  that  statements  are  not  to  be  hypothetically  made,  or 
in  the  alternative,  is  equally  applicable  to  the  pleading  on  the 
part  of  the  plaintiff.  A  violation  of  the  rule  is  a  departure  from 
that  directness  of  statement  which  is  an  essential  element  of  good 
pleading  under  every  system,  and  it  tends  to  produce  confusion 
and  uncertainty  in  the  issue.  In  cases  where  a  party  is  "  ag- 
grieved," by  any  such  misstatement,  the  court  will  doubtless  cor- 
rect the  abuse  on  motion. 


[*360]  *  SECTION  III. 

THE  DEMAND  FOR  RELIEF. 

The  thu-d  requisite,  which,  by  the  Code,  the  complaint  is 
required  to  state,  is : 

A  demand  of  the  relief  to  which  the  plaintiff  supposes  himself 
entitled.  If  the  recovery  of  money  be  demanded,  the  amount  there- 
fore shall  be  stated.' 

In  an  action  at  law  for  a  money  demand,  the  declaration,  after 
stating  the  cause  of  action,  and,  when  necessary,  the  special 
injury  or  damage  resulting  therefrom,  usually  concluded  with 
what  was  called  the  ad  damnum  clause,  "  to  the  damage  of  the 

said  plaintiff  of ,"  etc.     The  plaintiff  might  recover  any 

less  sum  than  that  laid  in  his  declaration,  but,  in  general,  could 
not  recover  more. 

In  an  action  to  recover  specific,  real  or  personal  property,  the 
conclusion  of  the  declaration  was  similar,  and  the  plaintiff,  instead 
of  demanding  the  relief  to  which  he  supposed  himself  entitled, 
namely,  the  possession  of  the  land  or  the  restoration  of  the  chat- 
tels, merely  alleged  that  he  was  injured  and  damaged  to  a  specified 
amount,"  leaving  to  the  court  to  pronounce  the  proper  judg- 
ment on  the  facts  as  they  appeared  at  the  trial.  A  defect 
[*361]  in  the  ad  *  dam^num,  clause  was  a  matter  of  form  merely, 
and  the  objection  was  taken  by  special  demurrer. 

In  equity,  the  bill  of  complaint  usually  contained  a  prayer  for 
the  particular  relief  to  which  the  complainant  thought  himself 

'  Code,  g  142.  3d  subdivision.  thought  proper  to  state ;  2  R.  S.  804« 

*  In  ejectment  any  nominal  sum  he     §  7,  2  Edm.  Stat.  312. 


SEC.  III.]  THE   COMPLAINT.  273 

entitled.  The  usual  practice  was  also  to  include  a  prater  for 
general  relief,  in  the  discretion  of  the  court,  so  that,  if  the  com- 
plainant should  mistake  the  relief  to  which  he  was  entitled  in  his 
special  prayer,  the  court  mi^^ht  afford  him  the  relief  to  which  he 
had  a  right,  under  the  prayer  for  general  relief,  provided  such 
relief  was  agreeable  to  the  case  made  by  the  bill.'  If  there  was 
no  prayer  for  general  relief,  none  other  could  be  granted  than 
that  specially  asked  for.''  A  prayer  for  general  relief,  however, 
was  usually  sufficient  without  a  prayer  for  particular  relief,  and 
the  plaintiff,  at  the  hearing,  might  ask  the  particular  relief  to 
which  he  thought  himself  entitled  f  but  in  such  case  the  court 
would  grant  such  relief  only  as  the  case  stated  would  justify,  and 
not  ordinarily  permit  a  bill,  framed  for  one  purpose,  to  answer 
another,  especially  if  the  defendant  might  be  sm'prised  or  pre- 
judiced thereby.* 

The  theory  of  the  Code  seems  to  do  away,  in  all  cases,  with  the 
prayer  for  general  relief,  and  to  require  the  party  specifically  to 
demand  the  relief  to  which  he  supposes  himself  entitled.  Thus, 
in  an  action  to  recover  real  property,  the  complaint,  after  stating 

the  case  conformably  to  the  principles  already  laid  down, 
[*302]  *  should  conclude  with  a  demand  that  the  defendant  be 

adjudged  to  deliver  the  possession  to  the  plaintiff,  with 
damages  for  the  withholding  thereof,  such  sum  as  the  plaintiff^ 
may  claim.  So,  also,  in  an  action  to  recover  personal  property. 
It  is  to  be  observed,  however,  that  the  Code  relaxes  the  equity 
rule  in  one  respect,  namely,  that  where  there  is  no  prayer  for 
general  relief,  though  the  plaintiff"  may  have  mistaken  the  par- 
ticular relief  to  which  he  is  entitled,  yet  the  court,  except  in  case 
there  be  no  answer,  may  grant  him  any  relief  consistent  with  the 
case  made  by  the  complaint,  and  embraced  within  the  issue.* 
[Where  there  is  an  answer  the  court  is  to  give  such  relief  as  the 
parties  are  entitled  to,  whether  demanded  in  the  complaint  or  not.* 
The  court  should  award  the  plaintiff  any  judgment  to  which  he  is 

'  Story's  Eq.  PI.,  §  49.  337  ;  but  see  tliis  case  qualified  on  the 

s  Id.,  ^  40 ;  Cooper's  Eq.  PI.  13,  14,  merits,  Burt  v.  Burt,  41   N.  T.  46  ; 

«  Id.   '  Emerp  v.  Pease,  20  id.  62 ;  20  How. 

*  Story's  Eq.  PI.,  §^  41,  42  ;  Cooper's  189  ;  id.,  and  see  the  cases  fully  stated 

Eq.  PI.  14.  '  in  Mr.  Townsend's  notes  to  section  275 

'  Code,  §  275.     [Cuff  v.  Borland,  55  of  Voorhies'  Code.] 
Barb.  482  ;  Wood  v.  Brown,  34  N.  Y.        »  Jones  v.  Butler,  20  How.  189. 

35 


274  DEMAND   FOE  EELIEF.  [CH.  IV. 

entitled  on  the  whole  case,  whether  at  law  or  in  equity^  When 
the  complaint  unites  legal  and  equitable  causes  of  action,  if  the 
evidence  sustain  either^  judgment  should  be  rendered  accordingly, 
whether  the  action  be  tried  at  circuit  or  special  term.*  The  plain- 
tiff may  embrace,  in  liis  complaint,  both  legal  and  equitable  causes 
of  action,  and  the  erroneous  decision  by  the  court,  on  motion  of 
the  plaintiff,  that  the  defendant  is  not  entitled  to  a  jury  because 
the  complaint  sets  up  only  equitable  causes  of  action,  works  no 
waiver  by  the  plaintiff  of  any  legal  causes  of  action  therein  con- 
tained ;  and,  failing  to  establish  any  equitable  cause,  he  may  recover 
upon  any  legal  cause  of  action  which  he  may  have  established  as 
contained  in  his  complaint.'  If  the  complaint  contains  more  than 
one  cause  of  action,  the  remedy  is  by  motion  to  strike  out  the 
allegations  not  material  to  one  of  them.  The  court  should  not 
dismiss  the  complaint.*]  If,  however,  there  be  no  answer,  the 
relief  cannot  exceed  that  which  the  plaintiff  shall  have  demanded 
in  his  complaint '  [and  a  demm-rer  is  not  an  answer.']  It  has  been 
held  that  the  case  made  by  the  defendant's  answer  may  furnish 
a  ground  of  relief  to  the  plaintiff,  independent  of  the  case  made 
by  him  in  his  complaint.' 

The  common-law  rule,  that  the  plaintiff  cannot  recover  in 
damages  a  greater  sum  than  he  claims  in  his  complaint,  it  seems, 
is  not  affected  by  these  provisions  of  the  Code.  If  the  recovery 
of  money  be  demanded,  the  plaintiff  is  required  to  state  "  the 
amount  thereof"*  [and  if  a  verdict  be  recovered  for  a  greater 
sum  than  is  demanded,  the  plaintiff  cannot  have  judgment  there- 
for, except  upon  granting  a  new  trial  and  amending  the  com- 
plaint.'] In  an  action  which  is  brought  for  the  recovery  of  a 
sum  certain,  as  on  a  promissory  note,  or  for  a  liquidated  demand, 
this  may  always  be  done  with  a  reasonable  degree  of  exactness. 

The  plaintiff  may  claim  such  an  amount,  with  interest 
[*363]  *  thereon  from  such  a  date,  and  his  costs.     In  cases  of 

unliquidated  damages,  of  course  the  amount  should  be 

>  Armitage  v.  Pulver,  37  N.  Y.  494.  «  [Simonson  v.  Blake,  12  Abb.  831, 

2  N.  T.,  etc.,  V.  N.  W.,  etc.,  23  N.  Y.  20  How.  484.] 

857 ;  McKeon  v.  Lee,  4  Rob.  465.  «  Kelly  v.  Domiing.  42  N.  Y.  71. 

«  Davis  V.  Morris,  36  N.  Y.  569.  "<  Belknap  v.  Seeley,  2  Duer,  570  ;  [11 

*  Bass  V.   Comstock,  38  N.   Y.  21 ;  N.  Y.  237;  21  id.  313;  17  How.  31 ,  10 

Anderson  v.  IBll,  53  Barb.  238  ;  Render-  Paige,  288.] 

»m  V.  Jackson,  9  Abb.  N.  S.  293.  »  Code,  §  142. 

•  Corning  v.  Coming,  6  N.  Y.  97. 


8EC.  III.]  THE   COMPLAINT.  275 

laid  liiii^li  enough  to  cover  all  possible  damages ;  and  tlie  plaintifi' 
may  claim  in  his  complaint,  and  may  recover  by  the  Code,  if  he 
show  himself  entitled  thereto,  any  rate  of  damages  which  he 
might  have  heretofore  recovered  for  the  same  cause  of  action.* 

It  is  no  ground  of  demurrer  to  the  complaint,  that  a  plaintiff 
demands  judgment  for  a  greater  sum  than  by  his  own  showing  he 
can  be  entitled  to  recover.  This  was  so  held  in  the  New  York 
superior  court,  in  Beale  v,  Hayes^  in  which  the  demurrer  to  the 
complaint  was,  that  the  contract  set  forth  by  the  plaintiff  liquidates 
the  damages,  but  the  complaint,  without  any  sufficient  cause  shown, 
claimed  unliquidated  damages  for  the  alleged  breach,  in  a  much 
larger  amount.  Duer,  J.,  in  giving  the  opinion  of  the  court, 
remarks  :  "  I  cannot  say  that  the  complaint  does  not  '  state  facts 
sufficient  to  constitute  a  cause  of  action.'  The  complaint  sets  forth 
a  valid  agreement,  and  assigns  a  positive  breach,  and  these  are  all 
the  facts  that  are  necessary  to  be  proved  to  entitle  the  plaintiff  to 
recover.  "Whether  he  can  be  allowed  to  prove  damages  exceeding 
the  sum  stipulated  in  the  agreement,  it  may  be  admitted  is  a 
question  of  law,  but  as  it  is  a  question  which  respects  the  event, 
and  not  the  cause  of  the  action,  it  can  be  raised  only  upon  the 
trial."  This  rule  is  undoubtedly  correct  in  principle,  and  con- 
sistent with  the  theory  of  the  Code,  although  perhaps  in  some 

respects  a  departure  from  the  equity  practice.     In  chan- 
[*364]  eery  a  demurrer  was  sometimes  allowed  *to  a  bill  where 

the  complainant  made  a  specific  claim  to  particular  relief, 
which  he  could  not  under  any  circumstances  be  entitled  to  at  the 
hearing ;  as  where  his  prayer  for  relief  was  inconsistent  with  the 
case  made  by  his  bill,'  But  the  demurrers  in  these  cases  were 
not  of  frequent  occurrence.  "  If  such  a  demurrer,"  says  the  chan- 
cellor in  one  case,*  "  be  allowed  at  all,  it  is  not  to  be  encouraged, 
as  the  defendant  may  avail  himself  of  the  objection  at  the  hearing, 
with  every  possible  advantage  which  he  could  obtain  by  a  demur- 
rer." The  same  reason  would  apply  to  a  pleading  under  the  Code. 
The  court  may  permit  the  complaint  to  be  amended  in  the 
amount  of  damages  claimed ;  and  that,  too,  after  issue  joined  in 

1  Code,  276.  *  Western  Ins.  Co.  v.  Eagle  Fire  Ins. 

«  5  Sand.  640.  Co.,  1  Paige,  384. 

*  Colton  V.  Ross,  2  Paige,  396 ;  Me- 
Cosker  v.  Brady,  1  Barb.  Cli.  339. 


276  DEMAND   FOR  RELIEF.  [CH.  IV. 

an  action  on  contract,  and  after  a  reply  verified,  reiterating  the 
amount  claimed  in  the  original  complaint.^ 

We  have  already  seen  that  under  the  Code  the  proper  relief, 
whether  legal  or  equitable,  will  be  administered  in  the  same  form 
of  action.  Thus,  in  See  v.  Partridge,^  the  complaint  demanded 
relief  in  damages  for  various  money  demands  arising  on  contract, 
and  also  to  set  aside,  as  fraudulent,  an  award  made  by  arbitrators 
in  relation  to  certain  disputes  growing  out  of  the  same  contract ; 
and  this  was  held  an  action,  not  for  the  recovery  of  money  only, 
but  which  was  properly  triable  without  a  jury  at  special 
[*365]  term.  In  Linden  v.  Hejpburn^  it  was  said  that  "  *in  some 
cases  alternative  relief  may  be  prayed,  and  relief  be 
granted,  in  one  or  the  other  form,  in  which  cases  an  action  at  law 
was  necessary  to  attain  the  one  form,  and  a  bill  in  equity  to  reach 
the  other."  But  in  that  case  it  was  very  properly  held  that  incon- 
disUnt  relief  could  not  be  demanded  in  the  same  complaint,  as 
that  the  plaintiff,  a  vendor,  could  not  demand  payment  of  an 
installment  of  purchase-money  in  arrear,  and  also  a  forfeiture  of 
the  contract  of  sale;  and  restoration  of  possession;  or  as  in  the 
case  at  bar,  that  the  plaintiff,  a  lessee,  could  not  demand  in  the 
same  complaint,  a  forfeiture  of  the  lessee's  term,  and  an  injunc- 
tion against  him  on  the  breach  of  the  covenants  in  his  lease.  In 
Getty  V.  Hudson  River  Railroad  Co.  ,*  a.  complaint  claiming,  by 
way  of  relief,  a  remedy  in  the  nature  of  an  injunction,  with 
damages  for  the  injuries  already  sustained,  was  decided  to  be  good. 
The  coui't  in  that  case  very  properly  remarks :  "  In  trying  such  a 
cause  at  the  circuit,  I  should  most  certainly  allow  whatever  amend- 
ment in  the  pleadings  was  necessary  to  give  the  party  redress.  If 
the  plaintiff  had  asked  for  equitable  relief,  and  it  had  turned  out 
that  he  was  entitled  to  legal  i-elief  only,  I  should  permit  him  to 
take  it  in  that  form.  And  if  he  had  asked  for  relief  only,  when 
he  was  entitled  to  both  legal  and  equitable  relief,  I  should  allow 
the  proper  amendment  to  administer  complete  justice  in  the  case." 

In   Godding  v.  McAllister^  di,  complaint  was  adjudged  to  be 

good  which,  upon  proper  allegations  for  that   purpose, 

[*866J  demanded,  as  the  relief  sought,  that  a  *written  contract 

«  Merchant  v.  iV.   T.  Life  Ins.  Co..  2        23  gandf.  671. 
Sandf.  669.  [Post,  marg.  p.  806.1  *6How.  Pr.  269. 

«  2  Duer,  463.  '  9  Bow.  Pr.  123. 


SEC.  III.]  THE   COMPLAINT.  277 

be  reformed,  on  the  ground  that  a  material  part  of  it  had 
been  by  mistake  omitted,  and  when  so  reformed,  and  made  to 
express  the  true  intent  of  the  parties,  that  it  be  enforced  against 
the  defendant,  and  he  be  adjudged  to  pay  the  damages  due  from 
a  breach  thereof.  Such  a  complaint  was  thought  to  contain  bu^ 
one  cause  of  action,  and  the  relief  demanded  therein  to  be  purely 
of  an  ecpiitable  nature.  And  in  JeToliinan  v.  Cvheii^  in  the  New 
York  superior  court  it  was  determined  upon  similar  grounds,  that 
a  complaint  might  demand  damages  for  breach  of  an  agreement, 
and  also,  that  the  agi-eement,  which  the  plaintiff  was  induced  to 
sign  by  fraud,  might  be  reformed,  so  as  to  correspond  with  the 
agreement  set  forth,  of  which  the  breach  was  alleged.  But  in 
the  same  court,  in  the  later  case  of  Lamoreaux  v.  The  Atlantic 
Mutual  Ins'uranee  Co.,^  it  was  held,  on  a  motion  to  make  such  a 
complaint  more  definite  and  certain,  that  such  prayer  for  relief 
was  improper,  unless  the  complaint  contained  the  necessary  alle- 
gations to  entitle  the  plaintiff  to  have  the  instrument  reformed, 
and  to  advise  the  defendant  that  such  question  will  be  litigated. 
But  though  the  plaintiff  may  thus  demand  in  his  complaint 
alternative  relief,  yet  it  should  be  only  such  as  is  "  consistent 
with  the  case  made  hy  the  complaint  and  embraced  within  the 
issueJ''^  In  other  words,  he  should  not  ask,  either  directly  or  in 
the  alternative,  such  relief  as  would  be  inconsistent  with 
L*367]  tlie  *case  made  by  his  compLaiut.  Subject  to  this  quali- 
fication, as  is  well  said  by  Justice  Pakkee,  in  Marquat\. 
Marquat,"  "  in  all  actions,  which  are  defended,  it  is  of  no  conse- 
quence what  is  the  demand  for  relief  in  the  complaint,  or  whether 
there  is  any  demand  for  specific  relief.  Whether  the  plaintift'  has 
mistaken  the  kind  of  relief  to  which  he  is  entitled  is  entirely 
immaterial,"  etc.,  etc.  The  rule  that  the  relief  demanded  should 
not  be  inconsistent  with  the  case  made  by  the  complaint,  is,  as 
has  just  been  observed,  precisely  what  the  old  equity  rule  was,  a 
violation  of  which  was  in  some  cases  reached  by  demurrer.* 
There  does  not,  however,  seem  to  be  any  way  under  the  Code  in 
which  a  defendant  can  reach  such  a  defect,  except  on  motion  to 
correct  the  pleading  as  was  done  in  Lamoreaux  v.  The  Atla^itio 

'  1  Duer,  629.  3  pode,  275. 

'^  Reported  N.  Y.  Times,  Sept.  32d,        ^  7  How.  Pr.  423. 
186-4,  aud  see  ante,  p.  187,  et  seq.  *  Ante,  p.  804. 


278  DEMAND   FOR  RELIEF.  [CH.  IV. 

Mutual  Insurance  Co.',^  and  it  was  expressly  held  in  the  case  of 
Beale  v.  Hayes,  noticed  on  a  former  page,^  that  a  demurrer  will 
not  lie  because  the  relief  claimed  is  not  consistent  with  the  facts 
stated  in  the  complaint.  It  is  true  it  was  held  at  special  term  in 
Maxwell  \.  Farnum^  that  a  complaint  was  bad  on  demurrer 
which  claimed  not  only  damages  for  the  conversion  of  personal 
property,  but  also  a  re-delivering  of  the  property  to  the  plain- 
tiff; but  in  that  case  the  demurrer  was  to  the  complaint  itself, 
as  joining  two  distinct  causes  of  action  which  might  be  referred 
to  the  third  and  sixtli  classes  of  actions  as  defined  by   the  two 

hundi-ed  and  sixty-seventh  section  of  the  Code,  and 
[*368]  was  not  a  demurrer   *simply  to  the   relief  sought.      It 

could  not  certainly  have  been  intended  to  decide  that 
a  plaintiff  might  not  claim  in  the  alternative  a  judgment  for 
the  recovery  of  the  possession  of  the  property,  or  for  the 
value  of  such  property  in  case  a  delivery  could  not  be  had, 
with  damages  for  the  detention  thereof.  Such  a  judgment 
is  expressly  allowed  by  the  Code,^  and  a  prayer  for  such  alter- 
native relief  seems  proper  and  consistent,  and  has  been  more 
than  once  adopted  in  practice ;  as  where,  for  example,  the  action 
is  brought  against  a  defendant  then  in  possession,  and  the 
plaintiff  does  not  seek  the  immediate  re-delivery  at  the  time  of 
bringino;  his  suit,  but  chooses  to  await  the  ultimate  restitution  of 
the  property,  which  it  is  held  he  may  do.^  Where  the  actual 
conversion  or  loss  of  the  property  is  alleged  in  the  complaint, 
so  that  it  appears  that  defendant  is  not  in  possession  at  the  time 
of  commencing  the  action,  it  would  be  manifestly  inconsistent 
to  demand,  as  part  of  the  relief,  a  judgment  to  recover  possession.* 
Such  a  defect,  however,  I  think,  should  be  corrected  on  motion, 
and  is  not  properly  a  ground  of  demurrer.  And,  so,  also,  if  the 
complaint  omit  entirely  to  demand  any  relief,  it  would  seem  to 
be  an  irregularity  merely,  and  by  the  analogy  of  the  practice  in 
cases  where  a  defective  title  of  the  cause  is  set  forth,'  such  a 
defect  is  to  be  reached,  not  by  demurrer,  but  by  motion  to  set 
aside  the  complaint  for  the  irregularity.* 

1  Ante,  p.  187,  note.  *  The  action  will  not  lie  at  all,  if  the 

*  Ante,  p.  363.  defendant  is  not  in  possession.     See  on 

*  7  How.  Pr.  236.  this  point  ante,  175, 176  marq.  p. 

*  Sec.  277  ;  see,  also,  §  561.  '  3  How.  Pr.  407,  1  C.  R.  N.  S.  20,  31. 
»  1  Abbott's  Pr.  170.  ^  See,  ante,  marg.  p.  204. 


SEC.  IV. J  THE   CO?I PLAINT.  279 

[*309J  *  The  prayer  for  relief  does  not  constitute  any  portion  of 
the  "  statement  of  facts ;"  it  does  not  require  a  reply  ;  no 
issue  can  be  taken  on  any  portion  of  it ;  it  is  addressed  to  the 
court,  and  will  not  be  granted  unless  upon  the  hearing  of  the 
facts  and  the  law  of  the  case,  the  ■  party  is  entitled  to  the  relief 
prayed  for,  and  consequently,  although  defective,  it  will  not  be 
struck  out  on  motion.'  The  Code  makes  provision  whereby  a 
party  may  protect  himself  against  an  improper  judgment,  without 
incurring  unnecessary  litigation.  By  section  385  of  the  Code, 
the  defendant  may,  at  any  time  before  the  trial  and  verdict,  ofler 
in  waiting  to  allow  judgment  to  be  taken  against  him/br  the  sum, 
or  property  or  to  the  effect  therein  sj^ecified,  with  costs.  If  the 
plaintiff  refuse  to  accept,  and  fail  to  obtain  a  more  favorable  judg- 
ment, he  cannot  recover  costs,  but  must  pay  the  defendant's  costs 
from  the  time  of  the  offer.''  AVherever,  therefore,  the  plaintiff 
demands  other  or  different  relief  from  that  which  the  facts  of  his 
case,  if  proved,  would  warrant,  the  proper  course  will  be  for  the 
defendant,  unless  he  moves  to  correct  the  pleading,  to  follow  the 
practice  marked  out  in  this  section  of  the  Code,  and  offer  in  writ- 
ing to  let  the  plaintiff  take  such  judgment  as  he  may  be  entitled 
to.  If  he  refuse  to  do  so,  a  defense  may  then  properly  be  made 
to  the  action. 

[*370]  *  SECTION  IV. 

THE  VEKIFICATION  OF  THE  COMPLAINT.' 

It  was  the  object  of  the  commissioners  of  the  Code  in  requiring 
all  pleadings,  except  the  demurrer,  to  be  verified,  to  narrow  down 
the  issue  as  much  as  possible  to  the  real  matter  in  controversy 
between  the  parties,  by  getting  an  admission  from  either  side  of 
those  facts  in  the  case  about  which  there  was  no  real  difference, 
and  thus  avoid  the  trouble  and  expense  of  calling  witnesses  to 
establish  such  facts  on  the  trial.*  Accordingly  the  original  Code 
provided  that  every  pleading,  except  the  demurrer,  must  be 
verified  by  the  party,  or  attorney,  to  the  efiect  that  he  believed  it 

'  Per  Cady,  J.,  Averill  v.  Taylor,   5        *  See  post,  525,  584,  marg.  p. 
How.  Pr.  478.  •»  See  Rep.  Com.  153. 

"^  Am.  Code,  §  385. 


280  VERIFICATIOIS"   OF   THE   COMPLAINT.  [CH.  IV. 

to  be  true/  except  when  the  party  would  be  privileged  from  testi- 
fying as  a  witness  to  the  same  matter,  in  which  case  the  verifica- 
tion might  be  omitted.'' 

The  section  was  amended  in  1849,  so  as  to  leave  it  optional 
with  the  party  to  verify  the  pleading  or  not,  prescribing,  sub- 
stantially, the  old  chancery  form  of  verification,  and  was  again 
amended  in  1851.  As  the  two  sections  now  stand,  they  read  as 
follows : 

§  156.  Every  pleading  in  a  court  of  record  must  be  subscribed 
by  the  party  or  his  attorney,  and  when  any  pleading  is 
[*371]  *  verified,  every  subsequent  pleading,  except  a  demurrer, 
must  be  verified  also. 

§  157.  The  verification  must  be  to  the  effect  that  the  same  is  true 
to  the  knowledge  of  the  person  making  it,  except  as  to  those  matters 
stated  on  information  and  belief;  and  as  to  those  matters  he  be- 
lieves it  to  be  true,  and  must  be  by  the  affidavit  of  the  party;  or, 
if  there  be  several  parties  united  in  interest,  and  pleading  together, 
by  one  at  least  of  such  parties  acquainted  with  the  facts,  if  such 
party  be  within  the  county  where  the  attorney  resides,  and  capable 
of  making  the  affidavit.  The  affidavit  may  also  be  made  by  an 
agent  or  attorney,  if  the  action  or  defense  be  founded  upon  a  writ- 
ten instrument  for  the  payment  of  money  only,  and  such  instru- 
ment be  in  possession  of  the  agent  or  attorney.  When  the  pleading 
is  verified  by  any  other  person  tlian  the  party,  he  shall  set  forth  in 
the  affidavit  his  knowledge,  or  the  grounds  of  his  belief,  on  the  sub- 
ject, and  the  reasons  why  it  is  not  made  by  the  party.  When  a 
corporation  is  a  party,  the  verification  may  be  made  by  any  officer 
thereof;  and  when  tlie  State,  or  any  officer  thereof  in  its  behalf,  is 
a  party,  the  verification  may  be  made  by  any  person  acquainted 
with  the  facts.  The  verification  may  be  omitted,  when  an  admission 
of  the  truth  of  the  allegations  might  subject  the  party  to  prosecu- 
tion for  felony.  And  no  pleading  can  be  used  in  a  criminal  prose- 
cution, against  the  party,  as  proof  of  a  fact  admitted  or  alleged  in 
such  pleading. 

By  a  subsequent  act,*  the  verification  of  a  pleading  may  be 
omitted  in  all  cases  where  the  party  called  upon  to  verify  would 
be  privileged  from  testifying  as  a  witness  to  the  truth  of  any 
matter  denied  by  such  pleading.*  [The  defendant  is  not  required 
to  show,  by  his  answer,  that  he  is  excused  from  verifying  it  under 
this  act;  but  when  a  motion  is  made  for  judgment,  as  if  no 
answer  had  been  served,  he  may  then  establish  the  facts  by  afil- 

'  It  was  held  that  if  not  so  verified,  ^  Laws  of  1854,  p.  153,  4  Edm.  Stat. 

the  pleading  might  be  treated  as  a  nul-  541. 

litv  ;  3  How.  Pr.  280,  I  Code  R.  26.  *  See  verification  of  answer,  poet,  ch. 

^  Orig.  Code,  §  133.  5,  §  5. 


SEC.  lY.]  THE  COMPLAINT.  281 

davit ;'  althougli,  if  the  ftict  do  not  appear  upon  the  face  of  the 
pleadings,  it  is  advisable  to  serve,  with  his  answer,  an  athdavit 
stating  the  facts  which  excuse  verification.'] 

The  form  and  manner  of  the  verification  is  thus  particularly 
pointed  out  by  the  Code.  It  must  be  made  by  the  party,  except 
in  certain  cases,  when  it  may  be  made  by  the  attorney  or 
[*372]  agent;  and,  when  made  by  *the  attornej',  the  reasons 
must  be  stated  in  the  affidavit.'  The  party  must  regularly 
subscribe  his  name  to  the  pleading  or  the  affidavit.*  But,  it  seems, 
the  signature  of  the  defendant  to  the  verification  is  a  sufficient 
"  subscription  "  to  the  complaint  within  the  meaning  of  the  Code.' 
The  Code  requires  the  verification  to  be  to  the  efi'ect,  that  the 
same  is  "  true  to  the  knowledge  of  the  person  making  it."  It  is 
sufficient,  however,  to  swear  that  "  the  complaint  is  true^''  which 
is,  in  law,  a  swearing  that  it  is  true  to  the  knowledge^  etc.,  of  the 
person  making  it."  But  it  is  not  sufficient  to  swear  that  it  is  sub- 
stantially true ;  the  statute  must  be  strictly  followed,  and  parties 
will  not  be  permitted  to  evade  it  by  qualifications  or  reservation 
of  any  kind.'  The  verification  must  be  that  the  same  is  true, 
"  except  as  to  those  matters  stated  on  information  and  belief,  and, 
as  to  those  matters,  he  believes  it  to  be  true."  By  the  amend- 
ment of  1849,  the  phraseology  was  "  on  information  or  belief." 
Under  this  section  a  verification  that  a  complaint  was  true,  "  ac- 
cording to  the  hest  of  his  knowledge  and  helief^^  was  held  insuffi- 
cient.* And  in  another  case  it  was  said  that  a  verification  was 
defective,  which  used  the  words  "information  and  belief."* 
P373]  *If  the  affidavit  is  made  by  one  of  several  parties  plead- 
ing together,  it  must  be  by  one  of  such  parties  acquainted 
with  the  facts ;  if  he  be  within  the  county  where  the  attorney 
reside,  and  capable  of  making  the  affidavit.  [If  the  action  be 
prosecuted  for  the  immediate  benefit  of  one  not  a  party  on  the 
record,  he  may  verify  it.'"] 

1  Moloney  v.  Bows,  2  Hilt.  247,  257 ;  «  SoutMcorth  v.  Curtis,  6  How.  Pr. 

Bee  cases  cited  by  Mr.  Townsend  in  271,  per  Hubbard,  J. ;  Kincaid  and 

note  to  Voorhies'  Code,  §  157,  and  by  wife  v.  Kipp  and  Brown,  1  Duer,  693. 

Mr.  Wait,  to  same  section,  his  Code.  '  Waggoner  v.  Brown,  8  How.  212. 

*  2  Tilliughast  &  Slierman's  Pr.  34.  *  Van  Home  v.  Willis  et  al.,  5  How. 

3  Van  Home  v.  Willis  et  al.,  5  How.  Pr.  238,  per  Gridley,  J. 

Pr.  238.  9  Davis  v.  Potter,  2  C.  E.  99,  4  How. 

■•  Laimbeer  v.  Allen,  2  Sandf.  648.  Pr.  156. 

8  Hubbell  V.  Livingston,  1  C.  R.  53,  ^^Taber  v.  Gardner, 6  Abb.N.  S.  147, 
per  Watson,  J. 
36 


282  VEKIFICATIOISr   OF  THE   COMPLAINT.  [CH.  IV. 

When  tlie  verification  is  made  by  the  agent  or  attorney  the 
reasons  must  be  stated'  in  all  cases,  why  it  is  not  made  by  the 
party.  If  made  by  the  agent  or  attorney  on  a  written  instrument 
for  the  payment  of  money,  in  the  attorney's  possession,  the  affidavit 
must  show  that  such  instrument  is  in  his  possession,  and  need  not 
state  any  other  reason  why  it  is  not  made  by  the  party.  But  in 
such  cases  the  attorney  or  agent  cannot  verify  the  pleading  simply 
on  information  and  belief  in  the  usual  form.  He  must  state  what 
knowledge  he  has  on  the  subject,  and  when  he  speaks  of  his  belief 
he  must  state  the  ground  of  such  belief  It  was  said,  in  Hunt  v, 
Meacham^  that  if  made  by  the  agent  or  attorney  in  any  other 
case  than  on  a  written  instrument,  he  must  show  that  he  has^er- 
sonal  knowledge  of  the  facts.  This  decision  has  not  been  followed 
and  may  be  regarded  as  overruled.  Thus,  in  Stannard  v.  Mattice* 
Justice  Parker  held  that,  where  a  party  is  not  within  the  county 
in  which  the  attorney  resides,  the  attorney  may  verify  a  plead- 
ing, though  the  action  or  defense  be  not  founded  on  a  writ- 
[*374]  ten  instrument  in  possession  of  the  attorney,  and  *though 
all  the  material  allegations  of  a  pleading  may  not  be 
within  his  personal  knowledge.  But  in  such  cases  the  attorney 
must  set  forth  in  the  afiidavit  his  knowledge,  or  the  grounds  of 
his  belief  on  the  subject,  and  the  reason  why  it  is  not  made  by 
the  party.  To  the  same  efi'ect  is  the  case  of  Lefevre  v.  Latson^ 
in  the  New  York  superior  court,  in  which  Justice  Duer,  with  the 
concurrence  of  the  other  judges  of  that  court,  considers  the  •  true 
construction  of  the  section  to  be  that  the  affidavit  may  be  made 
by  the  agent  or  attorney  on  information  and  belief,  in  case  of 
the  incapacity  of  the  party,  or  his  absence  from  the  county. 
In  that  case  it  was  also  said  that  the  statute  might  be  con- 
strued as  designed  only  to  modify  the  general  rule,  by  provid- 
ing that  even  where  the  party  is  within  the  county  and  capable 
of  making  the  affidavit,  it  might  be  made  by  the  agent  or  attor- 
ney having  a  personal  knowledge  of  the  facts,  or  the  possession 
of  the  written  instrument  upon  which  the  action  or  defense  is 
founded. 

'  Fitch  V.  Bigelmo,  5  How.  Pr.  237 ;  ^  7  How.  Pr.  4 ;  see  also  Boscoe  v.  Mai- 
Van  Home  V.  Willift,  id.  238.  son,  id.  121. 
2  Treadwell  v.   Fasset,  10  How.   184.  «  5  Sandf.  650. 
« 6  How.  Pr.  400. 


SEC.  v.]  THE  COMPLAINT.  283 

The  guardian  of  an  infant  plaintiff  may  verify  the  complaint.' 
The  guardian,  for  this  purpose,  is  "  the  party  "  within  the  meaning 
of  section  157.  A  verification  to  a  pleading,  made  before  the 
plaintiff's  attorney,  was  held  defective  in  Gilmore  v,  Ilemp- 
["^375]  steady  but  such  a  verification  is  a  mere  irregularity,  *not 
*  a  nullity,  and  is  waived  by  the  other  side  unless  objected 
to  at  the  first  opportunity. 

Defective  verification  of  comjplaint^  how  treated. — [If  a  com- 
plaint be  not  properly  verified,  it  cannot  be  set  aside  for  that 
reason.  If  not  verified,  or  the  verification  be  defective,  the  defend- 
ant is  required  to  answer  it,  but  he  may  do  so  without  verifying 

his  answ^er.'] 
[*3T6]       *Tlie  mode  of  procedure  in  case  of  a  defective  verifi- 
cation of  the  answer  will  be  hereafter  considered.* 

A  copy  of  tlie  verification  must  be  served  with  the  pleading, 
otherwise  the  opposite  party  may  treat  the  verification  as  a  nullity.* 
And  where  a  pleading  is  served  without  a  verification,  and  after- 
ward re-served,  without  alteration,  but  with  a  verification,  held, 
that  the  pleading  last  served  was  not  an  amended  pleading,  the 
verification  being  no  part  thereof,  and  might  be  disregarded.* 
But,  it  seemSj  that  on  excuse  shown,  and  in  furtherance  of  justice, 
the  court,  on  motion,  will  allow  a  complaint  to  be  verified  after  it 
has  been  served.'  If  the  venue  be  omitted  in  the  affidavit  of  veri- 
fication, the  verification  is  a  nullity,  and  the  opposite  party  may 
60  treat  it  without  returning  it.* 


[*377]  *  SECTION  Y. 

SUPPLEMENTAL  COMPLAINT. 

In  equity,  where,  by  an  event  subsequent  to  the  commence- 
ment of  the  suit,  a  new  interest  in  the  matter  in  litigation  was 
claimed  by  an  existing  party  to  the  suit,  or  a  new  party  claimed 

'  Hill  V.  Thacter,  .8  How.  Pr.  407,  3  «  George  v.  McAvoy,  1  Code  R.  N.  S. 

Code  R.  3;  Anahle  v.  Andble.'i^  How.  318,  per  Platt,  J. 

92,  5  Paige,  536, 6  id.  353, 3  Greenl.  Ev.,  '  Brngg  v.  Bkkford,  4  How.  Pr.  21, 

gS  278,  287.     [Ante.  marg.  pp.  91-2.]  per  Welles,  J. 

*  4  How.  Pr.  153.  *  Lane  v.  Morse,  5  How.  Pr.  394,  per 

*  2  Tillingliast  &  Shear's  Pr.  41.  Johnson,  J.      [See    Moak's    notes  to 

*  Post,  ch.  5,  i5  5.  Clarke's  Ch.  227,  marg.  p.} 

*  Orahain  v.  McCuun,  5  How.  Pr.  353. 


284  SUPPLEMENTAL   COMPLAINT.  [^H.  1\. 

the  interest  of  an  existing  party  (otherwise  than  by  mere  opera- 
tion of  law),  a  supplemental  bill  was  allowed.'  A  supplemental 
bill  was  proper  to  set  up  circumstances  material  to  the  original 
bill  which  have  happened  after  the  filing  of  the  bill ;  or,  when- 
ever the  imperfection  in  the  original  bill  arose  from  the  or^ission 
of  some  material  fact  which  existed  before  the  filing  of  the  bill, 
but  the  time  had  passed  in  which  it  could  be  introduced  into  the 
bill  by  amendment.  And,  generally,  a  supplemental  bill  w^as  not 
permitted  to  be  filed  whenever  the  same  end  could  be  obtained 
by  amendment."  Matters  arising  since  the  original  bill  was  filed, 
and  which  were  material  to  perfect  the  complainant's  case,  might 
be  introduced  by  supplemental  bill,  if  the  record  was  not  in  a 
state  to  admit  of  any  amendment.^  Matters  which  arose  previous 
to  the  filing  of  the  original  bill,  although  discovered  by  the  com- 
plainant afterward,  should  be  introduced  by  way  of  amend- 
[*378]  ment,  provided  the  *  cause  was  in  that  stage  in  which  an 
amendment  was  allowable.*  But  if  the  cause  had  pro- 
gressed so  far  that  an  amendment  could  not  be  made,  or  if 
material  facts  had  occurred  after  the  commencement  of  the  suit,  a 
supplemental  bill  might  be  filed.  And  so,  also,  if  it  became 
necessary  to  bring  before  the  court  some  party  essential  to  the 
proceedings  who  had  been  omitted  to  be  introduced  at  the  stage 
of  the  cause  in  which  an  amendment  could  be  made,  a  supple- 
mental bill  might  be  filed  for  that  purpose.'  Nothing  could  be 
inserted  in  an  original  bill,  by  way  of  amendment,  which  arose 
subsequent  to  the  commencement  of  the  suit,  but  the  same  must 
be  stated  in  the  supplemental  bill.' 

These  rules  are  still,  in  the  main,  applicable  to  the  practice 
under  the  Code  in  cases  where  a  supplemental  complaint  is 
allowed.     The  Code  provides  as  follows  : 

The  plaintiff  and  defendant,  respectively,  may  be  allowed,  on 
motion,  to  make  a  supplemental  complaint,  answer  or  reply,  alleg- 
ing facts  material  to  the  case,  occurring  after  the  former  complaint, 
answer  or  reply,  or  of  which  the  party  was  ignorant  when  his  for- 
mer pleading  was  made ;  and  either  party  may,  by  leave  of  the 
court,  in  any  pending  or  future  action,  set  up,  by  a  supplemental 

>  2  Barb.  Cli.  59,  3  Paige,  164.  »  Story's  Eq.  PI.,  §  268,  Welf.  Eq, 

«  Storv's  Eq.  PI.,  ^^  332.  333.  PI.  191,  2  Barb.  Ch.  Pr.  60. 

s  2  Barb.  Ch.  Pr.  60,  61.  ^2  Barb.   Ch.  Pr.   63  ;    Stafford  v 

<  Stafford  v.  Howlett,  1  Paige,  200.  Howlett,  1  Paige,  200. 


SEC.  v.]  THE   COMPLAINT.  285 

pleading,  the  judgment  or  decree  of  any  court  of  competent  juris- 
diction, rendered  since  the  commencement  of  such  action,  deter- 
mining the  matters  in  controversy  in  said  action,  or  any  part 
thereof;  and,  if  said  judgment  be  set  up  by  the  plaintiff,  the  same 
shall  be  without  prejudice  to  any  provisional  remedy  theretofore 
issued,  or  other  proceedings  had  in  said  action,  on  his  behalf.' 

It  has  been  held,  under  the  Code,  that  circumstances  happening 

after  the  commencement  of  the  action,  cannot  be  introduced  into 

the  complaint  by  amendment ;  such  matters  must  be  brought 

before  the  court  by  a  supplemental  complaint,  pursuant  to 

[*379]  section  177.'     *  This  is  in  accordance  with  the  former  rule 

in  equity.' 

But  when  a  defendant  is  made  a  party  by  an  amended^  in- 
stead of  a  suppemental  complaint,  the  facts  as  to  him  occurring 
after  issuing  the  original  complaint,  the  complaint  is  merely 
irregular  and  not  a  nullity^  where  no  substantial  rights  or  inter- 
ests of  such  defendant  are  eiFected,*  and  such  irregularity  is  waived 
by  notice  of  appearance  of  the  defendant. 

Under  the  liberal  system  of  amendments  allowed  by  the  Code, 
it  is  presumed  that  almost  all  other  matters  which  might  have 
been  the  subject  of  a  supplemental  bill  may  now  be  introduced 
by  amendment,  except  only  in  the  case  provided  by  the  Code, 
where,  after  the  expiration  of  a  year  from  the  death,  marriage  or 
disability  of  a  party,  the  action  is  to  be  continued  by,  or  against, 
his  personal  representatives.  In  such  case  it  must  be  done  by 
supplemental  complaint,  and  cannot  be  done  by  amendment  or 
motion.^  In  most  other  cases  an  amendment  of  the  proceedings, 
by  leave  of  the  court,  will  be  the  proper  course  to  pursue.  The 
court,  hefore  or  after  judgment,  may  amend  the  pleadings,  etc., 
by  adding  or  striking  out  the  name  of  a  party,  or  correcting  a 
mistake,  or  inserting  other  allegaiions  material  to  the  case;  or, 
when  the  amendment  does  not  change,  substantially,  the  claim  or 
defense,  by  conforming  the  pleading  or  proceeding  to  the  facts 
proved.  Parties  might  be  brought  in  by  amendment 
[*380]  *  at  any  time  jprior  to  a  decree  under  the  chancery  prac- 
tice.*    Matters  arising  previous  to  the  commencement  of 

>  Code,  §  177.  4  Beck  v.  RtepMni,  9  How.  Pr.  193. 

^  Hornfager  v.  Hornfager,  1  C.  R.  N.  *  Oreen  v.  Bates,  7  How.  Pr.  296 

S.  180.  TAnte,  marg  p.  148]. 

2  Story's   Eq.  PI..  §  363.  and   cases  '  «  2  Atk.  370. 
above  cited. 


286  SUPPLEMEXTAL   COMPLAINT.  [CH.  IV. 

tlie  action,  and  or  which  the  party  was  ignorant,  might  be  intro- 
duced into  the  complaint,  by  amendment,  'before  issue  and  the 
examination  of  witnesses ;  but,  it  seems,  after  that  time  should 
be  brought  before  the  court  by  supplemental  complaint.*  A  sup- 
plemental complaint  might  also  bring  before  the  court  a  party 
w^ho  was  onit  of  the  jurisdiction  of  the  court  when  the  original 
bill  was  filed,  and  who  had  since  returned,  in  cases  where  it  could 
not  be  done  by  amendment.'  Now,  by  the  Code,  the  pleadings 
may  be  amended,  even  after  judgment,  by  "  inserting  other  allega- 
tions material  to  the  case,"  as  well  as  by  "  adding  or  striking  out  the 
name  of  a  party."  Whether  or  not,  in  analogy  to  the  chancery 
practice,  a  supplemental  complaint  will  be  allowed,  under  the 
Code,  after  judgment,  for  the  purpose  of  enabling  the  com't  to 
give  directions  not  prayed  in  the  original  complaint,  but  which 
the  result  of  the  proceedings  under  the  judgment  has  rendered 
proper,  or  whether  a  supplemental  complaint  may  be  allowed  in 
case  of  a  judgment  of  the  court,  q_uere  ? 
The  Code  provides : 

In  case  of  death,  marriage  or  other  disability  of  a  party,  the 
court,  on  motion,  at  any  time  within  one  year  thereafter,  or  after- 
ward on  a  supplemental  complaint,  may  allow  the  action  to  be  con- 
tinued by,  or  against,  his  representative  or  successor  in  interest.  In 
case  of  any  other  transfer  of  interest,  the  action  shall  be  continued 
in  the  name  of  the  original  party ;  or  the  court  may  allow  the 
person  to  whom  the  transfer  is  made  to  be  substituted  in  the  ac- 
tion.' 

[*381]  *Thi8  substitution  is  made  on  motion.  Under  the 
equity  practice,  if  the  interest  of  the  defendant  became 
vested  in  another,  the  defect  was  remedied  by  a  supplemental  bill 
as  in  the  case  of  alienation  by  deed  or  otherwise,  or  by  bankruptcy 
or  insolvency,  the  defect  in  the  suit  might  be  supplied  by  supple- 
mental bill,  whether  the  suit  had  become  defective  merely,  or 
abated  as  well  as  become  defective.*  So  also  in  case  of  other  sub- 
stitution or  change  of  interest,  as  if  a  new  trustee  be  appointed 
in  place  of  a  trustee  made  a  party  defendant  to  a  suit,  such  new 
trustee  mnst  be  brought  before  the  court  by  supplemental  bill.* 

'  2  Barb.  Ch.  Pr.  60.  the  entire  section  has  been  heretofore 

*  Id.,  3  Denio,  155.  given.     Ante,  marg.  p.  148.] 

«  Code,  i^  121.     [It  is  unnecessary  to  ■*  Story's  Eq.  PI.,  §  343. 

insert  the  remainder  of  the  section,  e  s  ^  King  v.  Donnelly,  5  Paige,  46. 


SEC.  v.]  THE   COMPLAINT.  •  287 

The  same  principle  lias  been  applied  since  the  Code,  as  where  one 
copartner,  with  the  consent  of  the  other,  made  an  assignment  of 
a  portion  of  the  partnership  property  for  the  payment  of  partner- 
ship debts,  and  an  original  bill  was  Hied  for  a  partnership  account, 
but  before  the  appearance  of  the  assignee  as  one  of  the  defendants, 
he  died,  and  a  trustee  M^as  appointed  by  the  court  in  his  place,  it 
was  held  that  such  trustee  was  a  necessary  party,  and  that  the 
proper  way  to  make  him  such  was  by  supplemental  hilV 
[*3S2]  *The  continuance  of  the  action  and  the  substitution  of 
parties  referred  to  in  case  of  any  transfer  of  interest  after 
action  commenced,  if  applied  for  within  the  year,  may  be  obtained 
on  motion.  A  supplemental  complaint  is  only  necessary  if  the 
application  be  made  [more  than  one  year  after  the  cause  therefor 
arose.] 

A.  supplemental  complaint  should  state  the  original  complaint 
and  the  proceedings  thereon  f  but  it  is  not  necessary  to  set  out  at 
length  the  allegations  contained  in  the  original  bill,  though  it 
does  not  follow,  that  for  that  reason  the  bill  is  demurrable,^  If 
it  be  occasioned  by  an  event  subsequent  to  the  original  complaint, 
it  should  state  that  event  and  the  consequent  alteration  with 
respect  to  the  parties,  and  should  demand  relief  against  all  the" 
parties.  The  facts  stated  should  be  material  to  the  matters  in 
controversy  ;  if  they  are  not,  a  demurrer  will  lie  to  the  supple- 
mental complaint.*  If  the  original  complaint  is  wholly  defective, 
and  there  is  no  ground  for  proceeding  upon  it,  it  cannot  be  sus- 
tained by  filing  a  supplemental  complaint  founded  upon  matters 
which  have  subsequently  occurred.'  Yet,  if  the  original  com- 
plaint was  sufficient  for  one  kind  of  relief,  and  facts  after- 
[*383]  ward  ^occur  which  entitle  the  plaintiff  to  other  and  more 
extensive  relief,  he  may  obtain  it  by  setting  out  the  new 
matter  in  a  supplemental  complaint.'  A  supplemental  complaint 
should  make  all  the  original  defendants  parties.' 

'  Johnson  v.  Snyder,  7  How.  Pr.  395.  *  Story's  Eq.  PL,  g  43. 

It  does  not  appear  from  the  report  in  ^  Wattson  v.  Thibau,  17  Abb.  184  • 

this  case  whether  the  original  plead-  Bobbins  v.  Wells,  26  How.  15.  18  Abb 

ings  were   under  the  Code,  or  under  191. 

the  former  equity  system.     The  ques-  "  1  Paige,  168,  2  Barb.  Cli.  Pr.    67. 

tion  is  stated  to  have  arisen  on   "  de-  [liobbiiis  v.  Wells,  20  How.  15,  18  Abb, 

tnurrer  to  supplemental  bill."  19 i.] 

«  Story's  Eq.  PI.  343.  '  9  Paige,  538. 

^  Johnson  v.  Snylcr,  7  How.  Pr.  395. 


288  SUPPLEMENTAL   COMPLAINT.  [CH.  IV- 

A  supplemental  bill  could  not,  under  the  old  practice,  be  filed 
without  a  previous  order  of  the  court  giving  permission.' 

[A  supplemental  complaint  to  revwe  an  action  is  a  matter  of 
rio-ht,  but  cannot  be  file  1  witliout  leave  of  the  court.*  In  other 
cases  it  can  only  be  interposed  by  leave  of  the  court,'  which  may 
be  refused  when  the  party  has  been  guilty  of  laches;*  if  it  be 
untrue  in  fact,*  or  do  not  contain  a  good  defense  or  cause  of  action.* 
Nor  will  it  be  allowed,  in  general,  to  set  up  a  technical  defense.'' 
But,  if  true,  and  a  valid  defense,  it  will  usually  be  allowed,*  and, 
if  promptly  ofifered  after  the  facts  calling  for  it,  its  denial  will  be 
error.'  If  the  service  of  the  amended  pleading  would  be  in  fur- 
therance of  justice,  it  will  be  allowed,  although  the  motion  might 
have  been  made  earlier."  Such  a  pleading  will  be  allowed  almost 
as  a  matter  of  course,  without  costs,  if  promptly  made," 

A  supplemental  pleading  is  not  a  substitute  for,  or  waiver  of, 
the  original,  but  an  addition  to  it,'"  and  leave  to  serve  it  decides 
nothing  as  to  the  parties'  rights.'^  It  must  be  consistent  with  the 
original,'*  and  must  Ije  of  circumstances  happening  after  the  com- 
mencement of  the  action  or  after  the  original  pleading  was  put 
in.'^  If  happening  before  suit  brought,  the  remedy  should  ordi- 
narily be  allowed  by  amendment,  so  that  the  opposite  party  can, 
if  he  desire  so  to  do,  plead  anew  instead  of  merely  to  the  supple- 
mental matter."  If  the  opposite  party  do  not  desire  to  plead 
anew,  it  would  undoubtedly  be  within  the  power  of  the  court  to 
allow  a  supplemental  pleading  as  to  matter  occurring  before  suit, 

>  2  Paige,  333.  i"  Browjht  v.  (Jurtim,  8  How.  o6. 

'  Beach  v.  Regnolds,  64  Barb.  506;  "  Sage  v.  Mosher,  17  How.  367. 

overruling:  TtoacJi  v.  Lafarge,  43  Barb.  '-  Bann    v.   Baker,    13    How.   521  ; 

616 ;  19  Abb.  167.  Forbes  v.  Waller,  25  N.  Y.  435 ;  Slaii^ 

*  Duiilap's  note  to  PaHridge  v.  Us-  son  v.  Englchart,  34  Barb.  198 ;  Brown 
borne,  5  Ptuss.  253  ;  5  Eng.  Cli.  Rep.  v.  Richardson,  4  Rob.  607. 

(Banks'  ed.)  "  Bobbins  v.  Wells,  18  Abb.  191 ;  26 

■»  Morrel  v.  Oarrelly,  16  Abb.  269 ;  How.  15 ;  1  Rob.  666. 

Vheesman  v.  Sturges,  19  id.  293  ;  Sage  '•*  Slauson  v.  Englehart,  34  Barb.  198 ; 

V.  Mosher,  17  How.  367;  Eoughton  v.  Wattson  v.  Thihau,  17  Abb.  184;  Cor 

Skinner,  5  id.  420.  dier  v.  Cordier,  26  How,  187. 

*  Morrel  v.  Garrelly,  16  Abb.  269.  '^  Hornfager  v.  Ilornfager,  1  C.  R. 
6  Morrel  v.   Garrelly,  16  Abb.  269 ;  N.    S.   180 ;   Hendricks  v.   Decker,  3'^ 

Bctz  V.  Bctz,  19  id.  90.  Barl>.  302,  303 ;  Williams  v.  Ilernon,  16 

■>  Iluyt  V.  Shelon,  4  Abb.  69 ;  6  Duer,  Abb.  173 ;  Matthews  v.  Chicopee  Manf. 

661 ;  Sanford  v.  Sinclair,  3  Denio,  269.  Co.,  3  Rob.  712  ;  Radley  v.  Houghtaling, 

8  Morrel  v.   Garrelly,  16  Abb.  269;  4  How.  251 ;  1  Woolw.  C.  C.  R.  383. 

Bates  V.  Fellows,  4  Bosw.  639.  '*  Bann    v.   Baker,    12    How.   521 ; 

"  Broome,  v.  Beardsley,  3  Caines,  172  ;  Forbes  v.  Waller,  25  N.  Y.  430,  435  ; 

Weht  V.  Stanley,  1  Hill",  69  ;  Stewart  v.  Swatzel  v.  Arnold,  1  Woolw.  C.  C.  R.  383. 

Mdor,  5  Abb.  N.  S.  68. 


SEC.   v.]  THE   COMPLAINT.  289 

but.  even  then,  it  would  be  more  in  analogy  to  the  cystem  of 
pleadings  introduced  by  the  Code  to  require  the  origina.  pleading 
to  be  amended.* 

A  copy  of  the  proposed  supplemental  pleading  should  be  served 
with  the  affidavits  and  notice  of  motion.'  A  summons  for  relief 
must  accompany  the  supplemental  complaint  and  must  be  served 
upon  the  party  sought  to  be  brought  in  and  not  the  attorney  of 
the  former  party.'  The  supplemental  complaint  should  state  the 
original  action  and  the  several  proceedings  therein.  It  should  then 
show  the  abatement ;  the  plaintiff's  right  to  revive  the  suit,  and 
that  the  defendant  is  the  proper  person  against  whom  the  revivor 
should  be  had.  Thus,  when  an  executor  applies  to  revive  a  suit, 
he  must  show  that  he  has  taken  probate  of  the  will  of  the  dece- 
dent, otherwise  the  complaint  will  be  demurrable.  It  should 
charge  that  the  case  ought  to  be  revived  and  to  stand  in  the  same 
condition,  with  respect  to  the  parties  in  the  supplemental  com- 
plaint it  was  in  with  respect  to  the  parties  to  the  original  action 
at  the  time  the  abatement  happened.  It  should  demand  judg- 
ment that  the  action  be  revived  accordingly,  and  that  the  defend- 
ant answer  the  said  complaint  and  any  other  demand  for  judg- 
ment called  for  by  the  special  circumstances  of  the  case,*  unless  the 
complaint  for  revivor  state  so  much  of  the  original  complaint  as 
shows  that  the  plaintijffis  entitled  to  revive,  it  is  demurrable.^  The 
party  is  entitled  to  the  benefit  of  all  proceedings  had  in  the  action 
and  to  revive  it  in  the  precise  condition  in  which  it  was  at  the 
abatement.*  The  defendant  cannot,  by  his  answer,  resist  the 
plaintifi^'s  right  to  revive,  by  stating  matter  which  existed  at  the 
time  of  the  answer  or  decree.'] 

'  McMalion  v.  Allen,  1  Hilt.  103,  3  Simons,  81,  6  Eng.  Ch.  Rep.,  Banks's 

Abb.  89,  12  How.  39.  edition,  and  Bell  v.  Dunmore,  7  Beav. 

••*  1  Barb.Ch.  Pr.  371 ;  Wells  v.  Cruger,  287,  Banks's  edition. 

5  Paige,  164 ;  Qoodhue  v.  Churchman,  ^  2  Barb.  Cli.  Pr.  48  ;  Lawrence  v.  Bol- 

1  Barb.  Cli.  596  ;  Marquisee  v.  Brlgham,  ton,  3  Paige,  294. 

12   How.   399  ;  Fulton   v.    Oilmore,  8  *  2  Barb.  Cli.  Pr.  46,  47 ;   see  ante, 

Beav.  154-8, 1  Phillips,  522.  The  reader  marg.  p.  148. 

should  consult  Townsend's  notes  to  ^  ^  Phelps  v.  Sproule,  4  Simons,  318, 

177  of   Voorhies'  Code,    Wait's  notes  and  note  to  Banks's  edition,  6  Eng.  Ch. 

to  §  177  of  the  Code,  Tillinghast  and  Rep. 

Shearman's  Practice,  E.stee's  Practice  *  Moore  v.  Hamilton,  48  Barb.  120. 

and   Pleadings,  vol.  3,  pp.  5,  357-364,  ">  T>\in]3iY)'snoteto  Wagstaffv.  Bryan, 

and  Barbour's  and  Daniell's  Chancery  1  Russ.  and  Mylne,30,  5  Eng.  Ch.  Rep. 

Practice,    titles    Supplemental    Bills;  Banks's  edition  ;  25  N.  Y.  430. 
also,  note  to    Colclough    v.   Evans,  4 

37 


290  SUPPLEMENTAL   COMPLAHSTT.  [CII.  IV. 

The  Code  is  silent  as  to  tlie  practice  to  be  pursued  in  case  a 
suit  has  been  suspended  over  a  year  after  the  death,  etc.,  of  a  party, 
except  that  it  must  be  continued  on  a  supplemental  complaint. 
In  Greene  v.  Bates^  a  case  arising  under  the  Code,  it  was  said 
by  Justice  Mason,  that  the  former  practice  in  chancery  furnished 
the  mode  of  proceeding  in  such  case.  According  to  this  practice^ 
where  a  party  plaintiff  had  died  during  the  pendency  of  the  suit, 
it  was  not  the  practice  to  revive  the  suit  by  making  the  adminis- 
trators parties  plaintiffs  on  the  defendant's  motion.  But  the 
practise  was,  where  the  defendant  moves  to  grant  an  order 
requiring  tlie  administrators  to  file  a  supplemental  bill  in  a  stated 
time,  or  that  the  bill  be  dismissed,'  and  this  j^ractice  was  accord- 
ingly followed  in  the  case  referred  to.° 

'  7  How.  Pr.  296.  ^  gee  ante,  marg.  p.  148. 

*  Ibid.,  and  see  cases  tlierein  cited. 


CHAPTER  lY.  (A) 

OF  THE  COMPLAINT  IN  PARTICULAR  CASES. 

[It  would  be  manifestly  impossible,  within  the  limits  assigned 
to  the  present  work,  to  treat  of  the  allegations  proper  or  even 
necessary  in  the  various  actions  at  law  and  suits  in  equity.  The 
present  chapter  can  only  include  a  selection  of  the  recent  cases, 
and  of  some  of  those  out  of  the  ordinary  classes  of  actions.  We 
proceed  to  them  at  once  for  more  easy  reference,  as  nearly  as  may 
be,  in  alphabetical  order ;  premising  that,  although  many  of  the 
cases  do  not  arise  upon  questions  as  to  the  validity  of  a  plead- 
ing, that  it  is  necessary  to  know  the  rules  of  law  which  render  a 
party  liable  in  order  to  draw  a  good  pleading  upon  the  cause  of 
action. 

Account.  —  Where  complicated  accounts  are  involved,  a  suit 
in  the  nature  of  a  bill  in  equity  to  take  and  state  them  is  proper, 
altliough  an  action  at  law  would  also  lie ; '  otherwise,  however, 
if  the  account  is  not  long  nor  complicated,"  or  if  the  gist  of  the 
action  be  for  breach  of  contract,  and  the  inquiry  simply  involve 
many  items  of  damages.' 

The  action  of  account  at  common  law  would  only  lie  between 
two  merchants.  It  was  unavailable  where  the  firm  consisted  of  a 
larger  number,  and  the  Revised  Statutes  have  not  changed  the 
rule.*  One  who  seeks  to  open  a  settled  stated  account  must,  in 
his  comi3laint,  point  out  the  specific  errors  of  which  he  com- 
plains and  furnish  the  data  by  which  it  may  be  corrected,"  unless 
fraud  be  charged  and  established,  when  the  whole  account  will 
be  opened  and  examined.' 

>  Taff  Vale,  etc.,  v.  Mxon,  1   House  Abb.  N.  S.  266  ;  see  Hatch  v.  Wolf,  30 

of  Lords  Cases,  110 ;  1  Story's  Eq.  Jur.,  How.  65  ;  but  see  BirmingJiam  v.  Bat- 

^  441  et  seq.  cliff,  L.  R.,  6  Excli.  234. 

^  Foley  V.  Hill,  2  House    of   Lords  ■*  Appleby  v.  Brown,  34  N.  T.  143,  S. 

Case.s,  28.  C.  23  How.  207. 

^  Banger  v.  Great   Western,  etc.,  5  »  Parkinson  v.  Hanhury,  L.  R.,  3  H. 

House  of  Lords  Cases,  73;  Dewey  v.  L.  1 ;  Ghubbuck  v.  Vernam,  43   N.  Y. 

i^^^rf,  13  How.437;  Turner  y.  Taylor,  433. 

2  Daly,  278  ;  Freeman  v.  Atlantic,  etc.,  «  Bruen  v.   Hone,  2   Barb.    586  ;    1 

13  Abb.  124 ;    Boss  v.   The  Mayor,  3  Story's  Eq.  Jur.,  §  533  et  seq. 


292  COMPLAINT  iisr  paeticular  cases.     [CIT.  IV  A. 

Agent.'  —  An  action  by  a  purcliaser  lies  against  an  agent  f(3r 
fraud  practiced  bj  him  on  the  sale  of  property,  although  the  pur- 
chaser has  sued  the  principal  for  a  breach  of  warranty  on  the  sale 
and  been  defeated ;  *  and  so  against  an  agent  who  exceeded  his 
authority  in  assuming  to  contract  on  behalf  of  a  principal,  the 
gist  of  the  action  being  a  warranty  of  his  authority.' 

Otherwise,  if  the  person  contracting  with  an  assumed  agent 
know  his  powers,*  and  induce  him  to  enter  into  the  contract,''  or 
where  the  power  of  the  agent  is  given  by  statute.*  Though  the 
agency  be  disclosed,  if  the  agent  do  not  sign  as  such,  or  it  do 
not  appear  by  the  instrument  that  he  is  an  agent,  he  will  be 
liable  personally  thereon.^  He  must  so  contract  as  to  bind  those 
he  claims  to  represent,  and  merely  describing  himself  in  signing 
as  agent  will  not  relieve  him  from  personal  liability,*  although 
the  corporate  seal  of  his  principal,  a  corporation,  be  affixed.' 
Otherwise,  if  the  agent  promise  to  pay  "  as  agent,"  and  add  to 
his  signature  "  agent  for  A  B  j'""  or  the  contract  show  he  contracts 
as  such,"  or  where  a  note  is  payable  to  the  principal,  and  the 
agent  indorses  it,  adding  "agent,"  to  his  signatm*e.'"     If  the  agent 

'  Upon  the  subject    generally    see  ^  Story  on  Agency,  §  265 ;  Hall  v. 

Paley  on  Agency,  Story  on   Agency,  Lauderdale,  46  N.  Y.  70. 

Addison  on  Contracts,  Chitty  on  Con-  *  Aspinwall  v.  Torrance,  1  Lans.  381, 

tracts.  Parsons   on    Contracts,   Black-  385. 

stone's    Commentaries,    Kent's    Com-  *  Hall  v.  Lauderdale,  46  N.  T.  70. 

mentaries,     Broom's      Commentaries,  ''  Snelling  v.  Howard,   7   Rob.   400 ; 

Broom's    Commentaries    on   Common  Townsend  v.   Hubbard,  4    Hill,    351  ; 

Law,  Bouv.  Inst.,   Redfield    on   Rail-  Squire  v.  Norns,  1  Lans.  282. 

ways.  Shearman  and  Redfield  on  Neg-  ^  Pumpelly  v.   PJiclps,  40  N.  Y.  60, 

ligence,  Selwyn's  N.  P.  Smith  on  Con-  43   Barb.   469;    DeWitt  v.    Walton,  9 

tracts.  Smith's    Man.  Com.  L.,  Steph-  N.  Y.  571  ;  Reznor  v.  Webb,  36  How. 

en's  Commentaries,  Benjamin  on  Sales,  353;    Paice  v.    Walker.   Law   Rep.,  5 

Story  on  Sales,  Cowen's  Tr.,  Kingsley's  Esch.  173;  but  see  Hides  v.  Hinde,d 

ed.,  Wait's  Law  and  Practice,  Williams  Barb.  528;  Auburn,  etc.,  v.   Leonard, 

on  Personal    Property,  368,  marg.  p.  40  Barb.  119,  4  Alb.  Law  .Jour.  71. 

and  note  ;  Angell  and  Ames  on  Corpo-  '  Button  V.  Marsh,  L.  R.,  6  Queen's 

rations,  Adams's  Equity,Danieirs  Chan  Bench,  361. 

eery    Practice,  Story's    Equity  Juris-  '"  Randall  v.   Snyder,  1  Lans.  163  ; 

prudence,   Story's   Equity   Pleadings,  Becker  v.  Lamont,  IS  How.  23;  Haight 

Kerr  on  Injunctions,  Kerr  on  Frauds  v.  Saltier,  30  Barb.  218  ;  Olrritt  v.  Tioga, 

and     Mistakes,    Smith's    Manual     of  etc.,  40  id.  179  ;  27  N.  Y.  546,  4  Alb. 

Equity,    Willard's    Equity    Jurispru-  Law  Jour.  71. 

dence,  Moak's  Notes  to  Clarke's  Chan-  "  Lee   v.    Methodist,  etc.,  52    Barb. 

eery,  89,  marg  p. ;  Jiistee's  Pleadings  116 ;    Episcopal,  etc.,    v.    Varian,   28 

and  Practice,  1  Conw.  Rob.  Prac,  2  id.  id.  644  ;   Horton   v.    Oarrison,   23  id. 

3  id.,  5  id.,  6  id.,  Chitty's  Pleadings.  176. 

«  Gutr.hess  v.  WJdting,  46  Barb.  139.  '-  Bahcock  v.  Beman,  11  N.  Y.  200, 1 

»  Wliite  V.  Madison,  26  N.  Y.  117;  E.  D.  Smith,  593;  Thoinpsonv.  Tioga 

Cherry  v.  McBougal,  L.  R.,  3  Priv.  C.  etc.,  36  Barb.  79. 

C.  24. 


CII.  IV  A.]       COMPLAINT  IN   PARTICULAR  CASES.  293 

aver  by  answer  tliat  lie  contracted  for  his  principal,  intended  to 
bind  him  only,  and  the  contract  was  so  understood  by  all  parties, 
and  was  agreed  to  be  so  executed,  but  by  mistake  was  not 
executed  so  as  to  l)in.d  his  principal,  the  answer  would  show 
an  equitable  defense.'  An  agent  may  maintain  an  action  against 
his  principal  for  indemnity  upon  an  implied  promise  to  indem- 
nify him  against  loss  for  executing  his  orders,"  provided  the 
aorent  believe  the  directions  to  be  riirlitful/  Otherwise  if  the 
agent  ]:now  the  act  to  be  a  willful  wrong,^  or  the  agent  do  an  act 
not  within  the  directions.*  If  the  agent  seek  to  recover  costs 
incurred  or  damages  paid,  which  were  recovered  of  a  sub-agent, 
he  must  aver  them  specially."  An  agent,  as  a  deputy  sheriff, 
cannot  maintain  an  action  in  his  own  name.''  A  known  agent, 
who  makes  a  contract  as  such,  is  not  liable  personally  unless  he 
contract  to  become  so  liable,  or  exceed  his  powers.* 

Agreements,  special.  — ■  Assignment  of  a  patent  right,  the  as- 
signor to  work  it,  and,  if  not  done,  to  forfeit  what  he  has  paid  and 
the  assigi']nent  to  be  void,  does  not  bind  the  assignee  absolutely 
to  work  it." 

Aliniony.'"  —  A,  suit  for  alimony  will  lie,  although  the  plaintiff 
be  living  in  the  same  house  with  the  husband  and  is  not  entitled 
to  a  divo'^ce,  if  it  be  averred  and  shown  that  the  husband  is  very 
penurious  and  refuse  to  comfortably  provide  for  the  wife,  and 
that  he  has  been  guilty  of  cruel  and  inhuman  treatment,  which 
has  been  condoned,  for  refusing  to  properly  provide  for  the  wife, 
is,  in  one  sense,  a  revival  of  former  cruelty,  if,  for  any  reason,  the 
wife  cannot  safely  cohabit  with  the  husband.'^  Otherwise  if  there 

'  Wake  V.  Harrop,  1  Hurl,  and  Colt,  ^  Buck  v.  Amiclon,  41  How.  370. 

202,  6  Hurl,  and  Norm.  768.  »  mwell  v.  Wheeler,  4  Rob.  347. 

'^  Turner    v.    Jones,    1    Lans.    147  ;  '"  Upon    the   subject  generally,  see 

Cmtle  V.  Noyes,  14  N.  Y.  332 ;  BetU  v.  Moak's  note  to  Clarke's  Ch.,  mnrg.  p. 

Gibbous.  3  Ad.  and  Ell.  (39  Eng.  C.  L.  154,    3   Barb.    Ch.    Pr.,  Daniell's   Ch. 

Rep.)  57  ;  Toplis  v.  Grane,  5  Bing.  N.  Pr.,  title  Married  Women  ;  E.stee's  PI. 

C.  (35  Eng.  C.  L.  R.)  636  ;  Ailaire  v.  and  Pr.,  Voorhies'  Code,  Wait's  Code, 

Ouland,  3  Johns.  Cas.  52.  Van  Santvoord's  Eq.  Pr.,  Adams's  Eq., 

^Turner   v.    Jon<'s,    1    Lans.    147;  Story's  Eq..Jur.,  Willard's  Eq.,  Smith's 

Castle  V.  Noyes,  14  N.  Y.  332  ;  Howe  v.  Man  of  Eq.,  Kerr  on  Inj.,  Bishop's  Mar. 

Buffalo,  etc.,  38  Barb.  124,   37    N.  Y.  &  Div.,  Bishop  on  Married  Women,  Bl. 

297.  Com.  Bouv.  Inst.,  Broom's  Co'm.,  Sel- 

■*  Castle  V.  Noyes,  14  N.  Y.  332 ;  Stone  wyn's  N.  P.,  Stephen's  Com. 

V.  Hooker,  9  Co w.  154.  'i' P v.   i' ,  24   How.   197; 

*  Ilaroev  v.  Rochester,  35  Barb.  J77.  Manhy  v.  Scott,  0.  Bridg.  339  ;  Gallnnd 

«  Stone  T.  Hooker,  9  Cow.  154.  v.  Galland,  9  Am.  Law  Reg.  N.  S.  463, 

''  Terwilliger   v.    Yiheeler,  35  Barb.  Sup.  Ct.  Cal. ;  3  Am.  Law  Times,  State 

633.  Ct.  Rep.  354. 


294  COMPLAINT  IN   PARTICULAE   CASES.       [CH,  IV  A. 

have  been  no  improper  treatment,  or  attempt  at  any/  or  if  the 
wife  be  gniltj  of  recrimination  to  sneh  an  extent  as  to  justify 
the  defendant,  and  make  out  a  defense  to  the  action  under  the 
statute." 

Animals^  owners  of.' — The  owner  of  a  horse  accustomed  to 
bite,  to  his  knowledge,  is  liable,  if,  while  unmuzzled,  he  bite  a 
passer  by,*  and  the  complaint  in  such  case  need  not  aver  that  the 
injury  complained  of  was  received  through  the  defendant's  negli- 
gence in  keeping  the  horse.*  The  complaint,  in  an  action  for  an 
injury  by  a  domestic  animal,  should,  however,  allege  that  the 
owner  knew  it  was  vicious,*  unless  it  was  trespassing  upon  the 
plaintiif 's  premises  when  the  injury  was  committed,  when,  if  the 
complaint  allege  a  breaking  an  entry  of  plaintiff's  close,  the  trespass 
is  the  gist  of  the  action,  and  the  injury  merely  an  aggravation  of 
damages ;'  or  for  sheep  killed  or  wounded  by  a  dog,  where  the 
owner  is  made  liable  by  statute  without  knowledge  of  the  vicious 
propensity  of  the  dog,  and  although  it  be  not  shown  he  ever 
before  killed  or  wounded  sheep  ;*  but  the  statute  does  not  cover 
damages  from  a  dog  merely  chasing  sheep,  and  in  order  to  recover 
such  damages,  the  plaintiff  must  allege  and  prove  scienter.' 
But  even  where  the  owner  of  an  animal,  without  scienter,  is 
liable  by  statute,  for  injuries  committed  by  it,  ^proof  of  scienter 
is  admissible  to  increase  the  damages."*  One  who  willfully  sets 
a  dog  upon  other  animals  is  liable  for  any  injury  he  may  inflict," 
although  the   father   of  a  minor  or   master  of  a  servant   who 

1  Atwater  v.  Atwater,  53  Barb.  621,  WTieeler  v.  Brant,  23  Barb.  324  ;  Fair- 
36  How.  431,  441.  ckild  v.  Bentley,  30  Barb.  147 ;  Reed  v. 

2  Palmer  v.  Palmer,  29  How.  390,  Edwards,  17  0.  B.  N.  S.  (112  En^-.  C.  L. 
393,  394.  Rep.)  2G0 ;  Kdley  v.  Wade,  12  Irish  Law 

^  Upon  tlie   subject,  generally,  see  Rep.  424  and  cases  cited ;    Nayler  v. 

Shear,  and  Redf.  on  Neg.,  Addison  on  Mortimore,  17  C.   B.  N.    S.  24b,    112 

Torts,  Hilliard    on   Torts,   Bl.    Com.,  Eng.  C.  L.  Rep. 

Bouv.  Inst.,  Broom's   Com.,    Broom's  '  Van  Leumn  v.  Lyke,  1  N.  Y.  515  ; 

Com.  on  Common  Law,  Kent's  (.'om..  Hall  v.  Hodskins,  30  How.  27  ;  Danckel 

Cowen's   Tr.   (Kingsley's   ed.).  Wait's  v.  Kocker,  11  Barb.  387  ;  Reed  v.  Ed- 

LawandPr.,Hilliard's"Rem.  for  Torts,  loards,  17  C.  B.  N.  S.  (112  Eng.  C.  L. 

Smith's  Man.  Com.  Law  (1st  Am.  ed.).  Rep.)  245. 

10,   112,   117,    Stephens'    Com.,    Ben-  **  Osincup  v.  McJiols,  49  Barb.  145. 

iamin  on  Sales,  Story  on  Sales,  Wil-  '  Osincup  v.  Niohols,  49   Barb.  145  ; 

liams  on  Per.  Prop.  19,  mar^'.  J?.,  Chit-  Auchmuty  v.  Ham,  1  Denio,  495.   The 

ty's  PI.  statute  hereafter  referred  to,  as  to  who 

*  Koney  v.  Ward,  36  How.  255,  2  shall  be  deemed  the  owner  of  a  dog 
Daly,  295.  does  not  affect  the  question  as  to  whom 

^  Popplewdl  V.  Pierce,  10  Cush.  509  ;    he  is  liable. 
Kelle.y  v.  Tilton,  3  Keyes,  263.  '"  Swift  v.  Applehone,  23  Mich.  252 

*  Van  Leuven  v.  Lyke,  1  N.  Y.  515 ;        "  Tift  v.  Tift,  4  Denio,  175. 


en.  IV  A.]       COMPLAINT   IIST   PAETICULAE  CASES.  295 

does  so  is  not/  nuless  it  be  averred  and  proven  that  it  was 
done  bv  his  command  or  direction."  If  two  dogs  fight,  the  rule 
of  scienter  does  not  apply,  and  the  owner  of  the  dog  killed  must 
show  tliat  the  defendant's  dog  was  the  aggressor  in  that  particular 
fight.'  Offering  to  settle  for  damages  done  is,  however,  some 
itividence  of  scienter.''  The  owner  of  wild  beasts  must  restrain 
them  at  his  peril,^  although,  prior  to  tlie  act  of  1862,"  he  was  not 
liable  for  damages  caused  by  their  mere  appearance  frightening 
a  team,  without  it  being  averred  and  proved  he  knew  or  had  notice 
that  their  appearance  would  produce  such  a  result.'' 

It  is  not  necessary  to  show  that  the  animal  has  actually  bitten 
aiiy  one,  if  it  be  shown  that  it  has,  to  the  owner's  knowledge, 
evinced  a  savage  disposition  by  attempting  to  bite  ;*  but  merely 
bounding  upon  and  seizing  people,  so  as  not  to  hurt  them,  is  not 
sufficient.*  It  is  sufficient  if  the  dog  was  accustomed,  from  time 
to  time,  to  bite  people,  under  circumstances  which  would  not  pro- 
voke a  dog  of  good  temper." 

The  owner  of  a  vicious  animal,  of  whose  vicious  propensity  he 
has  had  notice  or  knowledge,  is  liable  for  an  injury  suflered  from 
it  by  one  upon  his  premises  by  his  license  ;"  and  so  as  to  a  tres- 
passer ;'^  otherwise  if  the  dog  were  chained,  so  as  to  notify  one 
approaching  him  that  he  was  dangerous." 

A  railway  company  is  not  liable  for  an  injury  inflicted  by  a 
stray  dog  at  their  station,  although  a  few  hours  before  he  had 
there  bitten  another  person,  if  he  was  then  driven  away ;"  although, 
in  ISfew  York,  every  person  in  possession  of  any  dog,  or  who 
shall  suffer  any  dog  to  remain  about  his  premises  for  twenty  days 
before  the  assessment  of  a  tax,  or  previous  to  his  injuring, 
chasing  or  worrying  sheep,  or  his  attacking  any  person  peaceably 
traveling  on  any  highway,  or  any  horse  in  a  carriage,  or  upon 

'  Tift  V.  Tift,  4  Denio,  175  ;  Steele  v.  «  Worth  v.  aUling,  Law  Rep.  3  C.  P.  1, 

Smith,  3  E.  D.  Smitli,  831.  »  Line  v.  Taylor,  3  Fost.  &  Finl.  731. 

2  Steele  v.  Smith,  3  E.  D.  Smitli,  321.  '"  Gharlwood  v.  Oreig,  3  Carr.  &  Kirw. 

»  Wiley  V.  Slater,  32  Barb.  506.     See,  46. 

however,  Wheeler  v.  Brant,  23  Barb.  "  Kelley  v.  Tilton,  3  Keyes,  363. 

324.  '-2  Loomis  v.   Terry,  17  Wend.  496  • 

*  Sayren  v.  Walsh,  12  Trisli  L.  R.  4R4  ;  Kelley  v.  Tilton,  3  Keyes,  269,  370  ; 
Thomas  v.  Morgan,  2  Crorap.  Mees.  and  Saioyer  v.  Jackson,,  5  N.  Y.  Leg.  Obs 
Rose.  496,  5  Tyrwli.  1085.  380. 

^  Scribner  v.  Kelley,  38  Barb.  14.  1=*  Logne  v.  Lurke,4:  E.  D.  Smith,  63, 

*  Laws  1863,  362,  3  Edm.  St.  545.  '"  Smith  v.  Great  Eastern,  etc.,  Law 
'  Scribner  v.  Kelley,  38  Barb.  14.            Rep.,  3  C.  P.  4. 


296  COMPLAI]N"T   IN   PAETICULAE   CASES.       "[CH.  IV  A. 

wliicli  any  person  sliall  be  mounted,  shall  be  deemed  tlie  owner 
of  sncli  dog ;'  but,  in  order  to  recover,  tlie  plaintiiF  must  aver  and 
prove  that  the  defendant  had  the  possession  of  the  dog,  or  allowed 
him  to  remain  about  his  house  for  twenty  days  previous  to  the 
injury."  And  it  is  not  sufficient  that  he  belonged  to  the  defend- 
ant's hu-ed  man,  who  kept  him  at  the  defendant's  house  during 
the  day,  but  took  him  home  at  night.''  It  is  not  necessary  to 
allege  knowledge  of  a  vicious  propensity  of  the  animal,  when 
the  owner  is  at  fault,  as  where  he  negligently  turns  a  horse  loose, 
or  allows  him  to  run  loose  in  a  populous  street  in  a  city,  and  he 
kick  one  therein.  The  negligence  of  the  defendant  in  permitting 
the  horse  to  be  in  a  public  street  unattended,  is  sufficient  to  ren- 
der him  liable  for  the  injuries  there  inflicted  by  him,*  but  merely 
proving  the  horse  was  in  the  street  unattended,  it  seems,  is  n«/ 
proof  of  negligence  on  the  part  of  the  owner.^ 

One  who,  by  putting  strong  smelling  meats  into  traps  on  his 
lands,  and,  by  their  instincts,  tempts  the  plaintiff's  dogs  to  the 
traps  to  their  destruction,  is  liable,  although  the  animals  were 
trespassing  at  the  time  they  came  to  grief.* 

Assault  and  battery.' —  If  the  owner  of  land,  overhung  by  the 
branches  of  a  fruit  tree  growing  upon  the  adjacent  lot,  attempts, 
by  violence,  to  prevent  the  owner  of  the  adjacent  lot  from  pick- 
ing the  fruit  on  the  overhanging  branches,  he  is  a  wrong-doer, 
and  an  action  for  assault  and  battery  may  be  maintained  against 
hjm;*  and,  if  the  fruit  or  the  tree  fall,  accidentally,  upon  the 
land  of  the  adjoining  owner,  the  owner  of  the  tree  may  enter 
thereon  to  reclaim  it.*  If  the  tree  stand  upon  the  line,  it  and  the 
fiTiit  belong  to  the  owners  as  tenants  in  common." 

A  physician  using  no  more  restraint  than  is  proper  for  the  treat- 

•  1  R.  S.  706,  §§  17,  20,  1  Edm.  St.  Inst.,  Broom's  Com.,  Broom's  Com.  on 
657,  658  ;  Auchmuty  v.  Ham,  1  Denio,  Common  Law,  Estee's  PI.  &  Prac,  Hil- 
595 ;  and  see  Jones  v.  Comma nwe,alth,  liard's  Rem.  for  Torts,  Hilliard  on 
15  Gray,  193.  Torts,  2  Conw.  Rob.  Prac.  551,  3  id. 

2  Strang  v.  Newlin,  38  How.  364.  337,  4  id.,  5  id.,  Chit.  PI.,  Stephen's 

^  Auchmuty  v.  Uam,  1   Denio,  495.  PI.,  Stephen's  Com.,  Selwyn's  N.  P., 

*  Dicknon  v.  McCoy,  39  N.  Y.  400 ;  Smith's  Man.  of  Com.  Law,  Tidd's 
and  see  Reg.  v.  Dant,  Leigh  &  Cave,  Prac. 

567,  10  Cox  'Cr.  C'as.  102.  ^  Hoffman  v.  Armstrong,  46   Barb. 

6  Cox  V.  Bnrhridqe,  13  C.  B.  N.  S.  337. 

(106  Eng.  C.  L.  R.)  430.  '  Anthony  v.  Haney,  8  Bing.  (21  Eng. 

«  Towrisend  v.  Waihen,  9  East.  277.  C.  L.  R.)  191. 

'  Upon   the   subject  generally,   see  "*  Dubois  v.  Beaner,  25  N.  Y.  123. 
Addison  on  Torts,  Black.  Com.,  Bouv. 


CH.  IV  A.]       COMPLAINT  IN  PAETICULAE  CASES.  297 

ment  of  a  person  laboring  under  delirium  tremens,  is  not  liable 
for  an  assault  and  battery.' 

Assignee.' —  A  complaint  against  an  assignee  for  rent  of  prem- 
ises hired  by  the  assignor,  but  leased  by  the  assignee,  for  the  best 
price  they  could  obtain,  paying  to  the  landlord  all  they  received, 
if  it  seek  to  charge  the  assignee  personally,  should  charge  him 
only  with  the  value  of  tlie  use  and  occupation,  and  not  the  price 
agreed  to  be  paid  by  the  lessor."  If  the  assignee  enter  and  occupy 
the  premises,  or  re-let  them,  he  is  \\&\Aq  personally  to  that  extent.* 
A  complaint  by  a  general  assignee,  for  the  benefit  of  creditors, 
should  allege  that  the  assignment  was  in  writing,  was  duly 
acknowledged  and  the  certificate  of  acknowledgment  indorsed 
upon  such  assignment  before  delivery  thereof  to  the  assignee; 
that  the  assignor,  within  twenty  days  after  the  assignment,  did 
make  and  deliver  to  the  county  judge,  of  the  county  in  which  such 
assignor  resided,  an  inventory  or  schedule  as  required  by  law ; 
that,  within  thirty  days  after  the  date  of  such  assignment,  the 
assignee  entered  into  a  bond  to  the  people  of  the  State  of  ISTew 
York  in  the  amount  ordered  and  directed  by  the  county  judge  of 
the  county  where  the  assignor  resided  at  the  date  of  such  assign- 
ment, with  sufticient  sureties  approved  of  by  such  judge,  con- 
ditioned for  the  faithful  discharge  of  the  duties  of  such  assignee, 
and  for  the  due  accounting  for  all  moneys  received  by  such 
assignee,  which  bond  was  filed  in  the  county  clerk's  ofiice  of  the 
county  where  the  assignment  is  recorded.*  The  assignee  of  a 
mortgage  must  allege  that  the  bond  or  indebtedness,  the  payment 
of  which  was  secured  by  it,  was  also  assigned  to  him,"  or  that  the 
mortgage  was  for  a  new  consideration  paid  to  the  mo7'tgagor,  with 
his  assent,  assigned  to  the  plaintifi"  to  secure  the  said  consideration 

'  8ymm  v.  Frazer,  3  Foster  &  Fin-  N.  P.,  Smith's  Man.  C.  L.,  Story's  Eq. 

lason,  859.  Jur.,  Wait's  Law  &  Pr.,  Waterman's 

''Upon   the   subject   generally,   see  Set-off,  Waterman's  Eden  on  Inj.,Wil- 

Voorhies'  Code,  Wait's  Code,  Chit.  PL,  lard's  Eq.,  Williams  on  Per.  Prop. 

Estee's  PI.  &  Pr.,Conw.  Rob.  Pr.  vols.  ^  Jgrmain  v.  Pattison,  46  Barb.  '). 

1,3,3,4,5,6,  Story's  Eq.  PL,  Adams'  *  Jermam  v.  Pattison,  46  Barb    13, 

Eq.,  3  Barb.  Ch.  Pr.,  Daniel's  Ch.  Pr.,  but  see  Ansell  v.  Robson,  3  Cromp.  & 

Smith's  Man.   Eq.,  Van  Sant.  Eq.  Pr.,  Jer.  610. 

Addison  on  Contracts,  Bl.  Com.,  Bouv.  ^  Ilardman  v.  Boicen,  5  Abb.  N.  S. 

Inst.,   Broom's    Com.,    Broom's    Clom.  333,  Laws  1860,  pp.  594-5,  ^J^  1,  3,  3  ;  4 

Common  Law,  Chit,  on  Contracts,  Cow.  Edm.  St.  484-5. 

Treat.    (Kingsley's    ed.).   Fry's   Spec.  «  Merritt  v.  BarthoWk,  34  How.  139, 

Perf.,  Kent's  Com.,  Kerr  on  luj.,  Kerr  36  N.  Y.  44,  47  Barb.  353. 
on  Frauds,  Pars,   on  Contracts,  Selw. 

38 


298  COMPLAINT   IN   PAETICULAE   CASES.       [CH.  IV  A. 

SO  paid,  to  the  mortgagor,'  or  that  no  bond  or  other  evidence  of  the 
indebtedness  secured  by  the  mortgage  was  given  therewith,*  or 
that  the  owner  of  the  bond  and  mortgage  assigned  to  the  plaintiff 
the  mortgage  "and  the  moneys  due  and  to  grow  due  thereon," 
whicli  assignment  would  carry  the  principal  indebtedness.  °  The 
assignee  of  a  lease  is  liable  to  his  assignor  for  all  damages  he  is 
compelled  to  pay  for  breaches  committed  by  such  assignee,  under 
the  implied  contract  to  perform  the  lease.*  If  one  of  two  part- 
ners sell  property  insured  to  his  copartner,  he  may  recover  upon 
the  policy  of  insurance,  notwithstanding  the  policy  contain  a 
clause  that  it  shall  be  void  in  case  of  a  sale  of  the  property  insured 
without  the  consent  of  the  insurers ;  but  the  complaint  should 
allege  that  the  plaintiff  and  his  assignee  were  the  persons  insured, 
and  owned  the  insured  property  as  partners.^  The  assignee  of  a 
foreign  executor  or  administrator  obtains  a  good  title  and  may 
maintain  an  action  as  such." 

Attorney/ —  An  attorney  is  bound  to  deliver  his  client's  papers 
to  him  in  a  reasonable  condition.  If,  when  delivered,  they  are 
in  a  disordered  state,  rendering  expense  necessary  to  arrange 
and  put  them  in  proper  order,  he  is  liable  therefor.*  Although 
relief  may  be  given  at  the  suit  of  a  client  against  his  solicitor 
for  a  loss  sustained  by  gross  negligence,  yet,  if  the  loss  was  in 
respect  to  a  matter  of  conduct,  as  to  which  the  advice  of  the  solic- 
itor was  founded  on  the  opinions  of  competent  surveyors  as  to 
the  value  of  the  property,  and  those  opinions  submitted  to  the 

^  Campbell  v.  Burcli,  1  Lans.  178.  (Kingsley's   ed.),    Hilliard    on    Torts, 

^  Severance  v.  Grifflth,2  Laus.  88.  Kent's  Com.,  Kerr  on  Inj.,  title  Solici- 

'  Belden  v.  Meeker,  2  Lans.  471-.  tor,    Kerr   on   Frauds    and   Mistakes, 

*  Moule  V.  Oarrett,  Law  Rep.,  5  Exch.  same  title,  Kerr  on  Receivers,  same 
133.  title.   Parsons   on   Contracts,    Reeve's 

^  Hoffman  Y.  j^tna,  etc.,  \  Rob.  501,  Hist,  of   English  Law,  Selwvn's  Nisi 

19  Abb.  325,  32  N.  Y.  405.  Prias,     Shearman     and     Redtield    on 

*  Peterson  v.  Chemical  Bank,  2  Negligence,  Adams's  Eq.,  title  Solici- 
Rob.  G05,  27  How.  491,  32  N.  Y.  tor.  Smith's  Man.  of  Eq.  (1st  Am.  ed.) 
21,  29  How.  240  ;  Middlebrook  v.  Mer-  p.  78,  3  Steph.  Com.  (6th  ed.)  323  et 
chants  Bank,  41  Barb.  481,  18  Abb.  seq..  Story's  Eq.  Jur.,  Story's  Eq.  PI., 
109.  Story  on  Cont.,  1  Wait's  Law  and  Prac- 

'  Upon   the   subject   generally,    see  tice.  Waterman's  Eden  on    Inj.,  Wil- 

Warren's  Duties  of  Attorneys ;  Living-  lard's  Equity  Jur.,  see   the  elaborate 

etons's  Law  Magazine,  January,  IS.IO,  note   to    Hill   v.   Finney,    4    Fost.    & 

p.  24,  et  seq.    The  various  works  upon  Finl.  625. 

Practice  :    Addison   on   Contracts,  Ad-  *  North  Western,  etc.,  v.   Sharp,  IC 

dison   on    Torts,    Blackstone's    Com.,  Exch.  451. 
Broom's  Com.  on  the  Common   Law, 
Cliitty  on  Contracts,  Cowen's  Treatise 


CH.  IV  A.]       COMPLAINT   IN"   PARTICtJLAR   CASES.  299 

judgment  of  the  client,  an  action  will  not  lie/     An  attorney  ma)' 
be  liable  for  negligence  in  not  issuing  an  execution.'' 

A  complaint  which  alleges  that  an  attorney  was  retained  to 
examine  the  title  to  certain  premises,  and  to  procure  an  estate  In 
fee  simple  therein,  to  be  conveyed  to  plaintiff,  and  alleges  that  he 
advised  plaintiff  to  take  title  with  incumbrances,  which  plaintiff 
was  compelled  to  pay,  shows  no  cause  of  action ;  the  incumbrances 
do  not  prevent  plaintiff*  from  acquiring  a  fee.'  The  mere  fact 
that  the  services  of  an  attorney  produced  no  beneficial  result  does 
not  prevent  his  recovering  therefor ;  it  is  only  when  they  are  use- 
less by  reason  of  the  negligence  or  want  of  proper  skill  of  an 
attorney  that  he  is  not  entitled  to  compensation,*  otherwise  as 
to  one  not  admitted  to  the  party's  knowldge.^  An  attorney  is 
liable  to  a  printer  for  his  fees'  and  to  a  sheriff"  for  his  fees,'  but  he 
is  not  liable  for  the  fees  of  a  referee,*  unless  he  agrees  to  pay  them, 
and  takes  therefor  the  note  of  the  party  liable.'  An  attorney 
who  merely  issues  an  execution  and  communicates  to  the  sheriff 
the  directions  of  his  clients  to  seize  certain  specified  property  is 
not  liable  as  a  trespasser,  although  the  seizure  is  wrongful,"*  but 
when  he  refused  to  state  whether  he  directed  the  sale  by  instruc- 
tions of  his  client,  and  challenged  a  suit  against  himself,  is  estop- 
ped from  denying  he  acted  on  his  own  responsibility."  Nor  will 
an  action  lie  against  an  attorney,  who,  by  mistake,  and  without 
malice,  brings  an  action,  proceeds  to  judgment  and  issues  an 
execution  against  the  wrong  party,  there  being  two  of  the  same 
name,  for  he  should  have  defended  the  action,'^  otherwise  for  selling 
property  on  an  execution  against  the  wrong  person  by  the  same 
name,"  when  the  judgment  has  been  assigned  to  him  and  he  induces 

'  Chapman  v.  Cha/pman,  Law  Rep.,  9  ^  Cook  v.  Bitter,  4  E.  D,  Smith,  254^ 

Eq.276.  255. 

*  Harrington  v.  Binns,  3  Fost.  &  Finl.  '  Berbeck  v.  Stafford,  23  How.  236, 
942.  14  Abb.  285. 

^  Elder  v.  Bogardus,    Lalor's  Sup.  *  Lnmoreaux  v.  Morris,  4  How.  245 ; 

116.  Judson  V.  Gray,  11  N.  Y.  408. 

*  Bowman  v.   Tollman,  40  How.  1,  ^  Judson  v.  Gray,  17  How.  289. 
afRrming  27  id.  213.   This  case  reviews  "  Ford  v.  Williams,  13  N.  Y.  578. 
the  cases  and  states  the  liability  of  "  ^^rcZ  v.  TFj%V«??is,  24  N.  Y.  359  ;  CooA 
attorneys  for  negligence  and  want  of  v.  Hopper,  23  Mich.  511. 

skill.     Consult  Addison  on  Torts,  title  '^  Dacics  v.  Jenkins,  3  N.  Y.  Leg 

Attorney ;    Addison  on  Contracts  (6th  Obs.  38,  11  INIees.  &  Wels.  745. 

Eng.  ed.)  400,  Parsons  on  Cont.,  title  '^  Jarmain  v.  Hooper,  6  Man.  &  Gr 

Attorneys.  (46  Eng.  C.  L.  Rep.)  827. 

°  Wakeman  v.  Haselton,  3  Barb.  Ch. 
148. 


JJOO  COMPLAINT   IN  PAKTICULAR   CASES.       [CH.  IV  A. 

the  sheriff  to  levy  on  goods  of  the  wrong  person  by  indorsing  on 
the  execution  the  residence  and  business  of  the  defendant  ;*  but 
if  the  attorney  had  not  owned  the  judgment  and  had  merely  made 
the  indorsement  for  the  information  of  the  sheriff  he  would  not 
have  been  liable." 

An  attorney  who  commences  a  suit  without  authority  from  the 
client  is  liable  to  him  for  the  damages.*  In  an  action  by  an 
attorney  for  services,  he  must  aver  and  prove  a  retainer.*  An 
executor'  or  guardian/  who  employs  an  attorney,  is  liable  to  him 
personally  for  his  services  and  he  cannot  recover  against  the 
executor  or  guardian  as  such.'' 

Auctioneer/ —  An  auctioneer  can  only  recover  two  and  a  half 
per  cent  on  the  amount  of  sales  by  him,  unless  a  written  agree- 
ment for  additional  compensation  be  previously  made,  and  if  he 
seek  to  recover  more,  such  a  written  contract  should  be  alleged 
in  the  complaint.' 

Award.  —  In  an  action  upon  an  award,  an  averment  that  it 
was  duly  published,  is  equivalent  to  an  averment  that  the  notice 
required  by  the  submission  was  given." 

Autlior.  —  An  author  whose  reputation  is  injured  by  an  inac- 
curate edition  of  his  work,  published  as  his,  may  maintain  an  action 
against  the  publisher,  although  the  publisher  be  the  owner  of  the 
copyright." 

Bailor  and  l)ailee."  —  It  has  been  held  that  either  the  general 

■  Bowles  V.  Senior,  4  N.  T.  Leg.  Obs.  (Kingsley's  ed.),  Daniell's  Chy.  Prac. 

274,  8  Ad.  &  EUis,  N.  S.  (55  Eng.  C.  L.  (4th   Am.  ed.).  Fry   on  Specific  Perf., 

R.)  677.  1  Greenl.  Ev.,  §  269,  Hilliard  on  Inj., 

^  CMlders  v.  Wooler,  2  Ellis  &  Ellis  Hilliard  on  Torts,  Kent's  Com.,  Kerr 

(105  Eng.  C.  L.  R.)  287.  on   Frauds  and   Mistake,  Parsons   on 

^  Mudryy.  Newman,  1  Cromp.,Mees.  Cont.,  Selwyu's  N.  P.,  Smith's  Man.  of 

&  Rose.   402 ;   Huhhart  v.  Phillips,  13  Com.   Law,    Smith's   Manual   of  Eq., 

Mees.  &  Wels.  702 ;  Bayley  v.  Buck-  Story's    Eq.    Jur.,  Story  on    Sales,   1 

land,    1  Exch.    1 ;    Wright    v.    Castle,  Wait's  Law  and  Prac,  Willard's  Eq. 

3  Meriv.  12.  Jur. 

*  Burghart  v.  Gardner,  3  Barb.  64.  *  Leeds  v.  Bowen,  1  Rob.  10. 
^Wilcox    V.   Smith,    26    Barb.   316;  ^'^  Matthe^cs  \.MattJicws,2C&vieT,\m. 

Ferriii  v.  Myrick,  41  N.  Y.  315,  rever-  "  Arclibold  v.  Sweet,  1  Moody  &  Rob. 

Bing,  53  Barb.  76.  162. 

« Bowman  v.  Tallman,  27  How.  212,  "*  Upon   the  subject  generally   see 

2  Rob.  385,  41  N.  Y.  619.  Edwards  on  Bailments,  Story  on  Bail- 

■>  Id.  ments,  Addison  on  Cont.,  Addison  on 

*  Upon  the  subject  generally,  see  Torts,  Ang.  &  Ames' Corp.,  Black.  Com., 
Adams's  Eq.,  Addison  on  Cont.,  Addi-  Eouv.  Inst.,  Bout.  Law  Diet.,  Broom's 
Bon  on  Torts,  Benjamin  on  Sal.-s,  Com.,  Broom's  Com.  on  Com.  Law, 
Bouv.  Inst.,  Broom's  Com.  on  Com.  Chitty  on  Cont.,  Chitty  on  Pleading, 
Law;  Chitty   on   Cent.,   Cowen's    Tr.  Cow.'Tr.  (Kingsley's  ed.),  Hilliard  on 


OH.  IV  A.]       COMPLAITvTT   IN   PAETICULAR   CASES. 


301 


owner  or  a  bailee  ma}^  recover  for  tlie  conversion  of  tlie  subject 
of  tbe  bailment ;'  and  that  ordinarily,  as  against  a  wrongdoer,  one 
having  a  special  property  may  recover   the   full    value  of  the 
property.'     It  would  clearly  be  otherwise  where  a  pledgee  bues 
the  owner  or  one  claiming  under  him  to  recover  for  the  injury  to 
his  special  property."     The  recovery  of  a  judgment  against  the 
o-eneral  owner  is  ordinarily  a  bar  to  an  action  by  his  bailee,  viho 
has  no  special  lien  upon  or  title  to  the  goods  converted,*  and  so,  in 
such  a  case,  an  action  ly  the  owner.'     This  rule,  however,  does 
not  apply  to  a  case  where  the  bailee  has  a  lien  upon  the  property, 
for,  if  the  owner  were  allowed  by  a  recovery  to  bar  his  action,  his 
special  property  might  be  rendered  worthless  by  the  wrong  of  a 
third  person  and  the  insolvency  of  the  general  owner.'    Even,  after 
judgment  in  such  an  action,  if  a  suit  were  pending  by  the  bailee, 
the  court  could  and  would  undoubtedly  relieve  the  defendant  on 
motion  in  the  action  by  the  bailor.'     Under  the  old  practice,  to 
entitle  the  general  owner  to  maintain  trover  or  trespass,  it  was 
necessary   that   he   should   have   or  be   legally   entitled   to   the 
possession,  and  he  could  not  maintain  the  action  if  the  property 
were  in  the  hands  of  a  pledgee  at  the  taking,'  and  since  the  Code, 
one  not  in  possession  of  property  but  holding  a  chattel  mortgage, 
under  which  he  was  not  entitled  to  possession,  cannot  maintain 
such  actions  against  an  execution  creditor  of  the  mortgagor  who 
sold  the  property  before  the  mortgagor  was  entitled  to  possession,' 
for  in  such  case  the  creditor  has  a  right  to  sell  the  mortgagor's 
interest  in  the  property,  and  doing  so  would  not  be  a  conversion. 
A  pawnor  may  maintain  an  action  for  ccnversion  of  the  prop- 
erty pledged  since  the  Code,'"  but  as  trespass  or  trover  will  only 

Remedies  for  Torts,  Hilliard  on  Torts,  Chadwich    v.    Lanib,    29    Barb     518 ; 

Kent's  Com.,  Parsons  on  Cont.,  Redf.  Story  on  Bailment  (7tli  ed.),  ^  JJ;^3.^^_ 

on  Railways,  2  Conw.  Rob.  Prac. ,  3  id.,  *  Greene  v.  Clark,  12  N  Y.  a-l-s.  ^-i^- 

4  id.,  5  id.,  6  id.,  Sedg.  on  Dam.,  Sel-  ^  Story  on  Bailm.  (7tb  ed.),  ^  ^^^-  ,, 

wyn's  N.  P.,  Shear,  and  Redf.  on  Neg.,  «  Gooding  v.   bhea,  103  Mass.   ot)U  ; 

Smith's  Man.  of  Com.  Law,  Stephen's  Hasbrouek   v.  Lounsherry,  2(>    £';___^- 

Com.,  Story's  Eq.  Jur.,  1  Wait's  Law  598  ;  Story  on  Bailm.  (7tb  eC),  fe  o.):-  , 

and  Prac,  Williams  on  Pers.  Prop.,  25  Edwards  on  Factors  and  Brokers,  lUJ 

etseq.,  marg.p.  and  notes  to  Am.  Ed.  '  GUrhrist  v.  Comjort,  2()  Mow    oJ4, 

'  Greene  v.    Clark,    12    N.  Y.  343;  43  Barb.   120,   1  Keyes,  6o,  38  JN.   1. 

Bowen  v.  Fcnner,  40  Barb.  383;  Bass  70,   2  Am.  Law  Times,    U.  b.  Courts 

V.  Pierce,   IG  Barb.  595  ;  Paddock  v.  Rep.  188. 

Wing,  16  How.  547  ;   Edwards  on  Fao  «  Buah  v.  Lyon,  9  Covy.  5J 

tors  and  Brokers,  109.  «  Goidet  v.  A^f<der,  22  N.  Y  23.J 

•'  Buck  V.  Eemsen,  34  N.  Y.  383.  "  Story  on  Bailment  ( - th  etl.).  i^  o5^ 

3  S  dg.    on    Dam.    (4th    ed.),    5G2  ;  Lion  v.  Orser,  5  Duer,  oOl,  50b. 


302  COMPLAINT   IN   PARTICULAR   CASES.       [CII.  IV  A. 

lie  by  one  who  has  or  is  entitled  to  possession,  it  seems  the  com- 
plaint should  be  framed  according  to  the  facts  to  recover  for  the 
injm-y  to  his  reversionary  interest  in  the  property/  although  it  is 
difficult  to  see  why  he  should  not  recover  the  full  value  of  the 
property,  as  the  taking  by  a  wrong-doer  would  not  discharge 
the  pawnor's  indebtedness,  and  the  pawnee  could  recover  the 
same  of  him  without  attempting  recourse  against  the  wrong-doer. 
Should  he  sue  and  recover,  deducting  the  pawnee's  interest,  after 
the  recovery  of  judgment  by  the  pawnor,  he  could  not  maintain 
another  action  against  the  wrong-doer,  becaus(^  he  would  not 
be  entitled  to  split  a  single  cause  of  action  —  the  taking  or  con- 
version.' 

The  plaintiff  lent  his  shed  to  the  defendant  to  make  therein  a 
signboard,  and  D,  a  carpenter  employed  by  the  defendant,  lighted 
his  pipe  from  a  match  with  a  shaving,  and  thereby  set  fire  to  the 
shavings  on  the  ground,  by  which  the  shed  was  burned.  The 
defendant  is  not  liable  either  as  bailee  or  as  master  and  servant." 
The  hirer  of  a  horse  and  wagon  suitable  for  carrying  two  may  take 
another  person  to  ride  with  him,  and  is  not  liable  therefor,*  and 
is  only  bound  to  treat  the  horse  as  carefully  as  any  man  of  com- 
mon discretion  would  treat  his  own,  and  supply  it  with  suitable 
food.*  And  so  the  hirer  is  not  bound  to  drive  the  horse  himself, 
he  is  entitled  to  allow  a  competent  person  to  do  so."  The  bailee 
of  a  horse  must  return  him  to  the  owner,  and  the  fact  that,  at  the 
time  of  the  bailment,  the  horse  was  kept  by  the  owner  with  a 
third  person,  will  not  authorize  the  bailee  to  return  to  such  third 
person  after  he  has  ceased  to  be  the  bailor's  agent ;  and,  if  he  do 
so,  it  is  a  conversion.'  The  bailee  is  liable  for  negligence  of  any 
person  to  whom  he  intrusts  a  duty,  as  that  of  a  hostler  in  not 
putting  the  bits  in  a  horse's  mouth.*  If  the  bailee  drive  the 
horse  further  or  differently  from  the  understanding  at  the  bail- 

1  Ooulet  V.  Asseler,  22    N.  Y.  22G;  v.  Cftrr,\^Gr&Y,2iil;  ScrantonwBax- 

Manning  v.  Monaqlmn,  10  Bosw.  281.  <er,  4  Saudf.  8;  Harrison  \.  Marshall,  4 

'■<  Vecider  v.  Vedder,  1  Deuio,  357.  E.  D.  Smith,  271. 

'  Williams  v.  Jones,  3  Hurl.  &  Colt.  *  Camroys  v.  Scurr,  9  Carr  &  P.  (38 

256  ;  atfirmed  in  Excliequer  Chamber,  Eng.  C.  L.  Rep.)  383;  but  see  Scranton 

id.  602.  V.  Baxter,  4  Sandf.  9. 

*  Ilarrington    v.    Snyder,    3    Barb.  '  Esmay  v.  Fanning,  9  Barb.  176,  5 

880.  How.  228. 

^  Ilarrington  v.  Snyder,  3  Barb.  380 ;  ^  Hall  v.  Warner,  60  Barb.  198. 
Neicton  v.  Pope,  1  Cow.  109 ;  Edwards 


CII.  IV  A.]       COMPLAIlvrT   IN   PARTICULAR   CASES.  SOS 

merit,  the  bailor  may  sue  tlie  bailee  tberefor,  without  returning 
the  hire  of  the  horse.' 

Banker. —  A  banker  who,  without  justihable  cause,  discioses  the 
state  of  a  customer's  account  is  liable  for  the  damages,  at  least  if  spe- 
cial damages  accrue.*  He  is  not  liable  for  a  box  kept  by  him  with  ■ 
out  compensation,  even  if  stolen  by  one  of  his  clerks,  unless  he  was 
guilty  of  gross  negligence ;  °  otherwise,  if  kept  for  a  commission.* 

Bill  of  exciiaiige.  —  In  an  action  against  the  acceptor  of  a  bill 
of  exchange  in  the  body  of  it,  made  payable  at  a  particular  place, 
but  accepted  generally,  it  is  not  necessary  to  aver  or  prove  present- 
ment at  the  place  where  it  is  made  payable.^ 

Bond.* —  A  bond  which  binds  the  obligor  to  expend  $350  per 
annum  for  the  support  of  the  obligor's  wife  and  also  to  keep  him 
harmless,  an  account  of  the  support  and  maintenance  of  the  wife 
is  broken,  if  the  obligee  is  subjected  to  liability  on  account  of  the 
wife's  support,  although  the  $350  is  expended  according  to  the 
terms  of  the  bond.'  On  a  bond  to  indemnify  the  obligor  against 
Ualility,  he  may  recover  the  full  amount  of  a  liability  without 
payment  thereof,*  o^  oii  an  agreement  to  pay  a  certain  debt.* 

Otherwise,  to  indemnify  and  save  the  obligee  harmless ;"  on  a 
covenant  to  indemnify  over  against  costs  and  damages,  he  cannot 
recover  what  he  had  to  pay  over  for  raising  money." 

Under  an  agreement  with  one  partner  to  pay  certain  partner- 
ship debts  and  to  keep  him  harmless  from  and  against  such  debts, 
the  obligee  cannot  recover  costs  of  supplementary  proceedings 
against  the  obligor.'"  Otherwise,  as  to  a  surety  by  statute."  In 
an  action  upon  a  bond  wliich  authorizes  the  obligee  at  his  elec- 

>  Dishrow  v.  Ten  Broeck,  4  E.  D.  Smith,  Pon  fZ,  19  Wend.  433 :  Wright  v.  WJiiting, 

397  ;   WJieelock  v.  WliedrigU,  5  Mass.  40  Barb.  235 ;  Jarms  v.  Setmll,  id.  449. 
104: ;  Cofjgsv.  Bernard,2Ld.  B.a,ym.\)i5.         ^  Gkwr chill   v.    Hunt,  3  Deiiio,  321; 

'■^  Hardy   v.  Veasey,   L.   R.,  3  Exch.  Thomas  v.  Allen.  1   Hill,  14.5 ;  but  see 

107 ;  Foster  v.  Bank.'etc,  3  F.  and  F.  214.  Rector,  etc.,  v.  Higgins,  4  Rob.  374. 

»  Oohlin  V.  McMuUin,  L.  R. ,  2  Priv.  C.        '"  McQee  v.  Roen,  4  Abb.  10  ;  Aber- 

C.  317 ;  Foster  v.  Essex,  etc.,  17  Mass.  479.  deeii  v.  Blackman,  6  Hill,  324  ;  Oilbert 

"■Re  U.S.  Company, h.R.,QCh..A.^\i.  v.  Wi/man,   1    N,   Y.    550;   Wright  v. 

212.  Wliiiing,  40  Barb.  235. 

«  Elliot  V.  Failey,  10  Irish  L.  R.  485 ;        "  Loio  v.  Archer,  12  N.  Y.  278. 
Selby  V.  Eden,  3  Bin;?.  (11  Eng.  C.  L.)        '-  Wright  v.  Whitiag,  40  Barb.  235. 
(JU;  Fai/le  v.  Bird,  6  Barn.  &  Cress.         '^  Laws  1858.  p.  500  ■  4Edm.  St.  483; 

[V6  Eng' CL.)  531  ■,I)aoisv.O'Hara,  5  see   Holmes  v.    Weed,   24   Barb.   51(5  • 

Irish  L.  R.  337.  and  Barge  on  Suretyship,  303,  befor-e 

*  See  Contracts.  statute  ;  and  see  Kingxland  v.  Braist.el, 

'  Scheioe  v.  Kaiser,  36  How.  198.  2  Lans.  18,  in  an  action  against   Btocli- 

*McQe6  V.  Roen,  4  Abb.  8;   Webb  v.  holders  for  the  debt  of  an  association. 


304  COMPLAINT   IlSr   PARTICULAR  CASES.       [CH.  IV  A. 

tion  to  consider  the  principal  as  due  on  failure  to  pay  the  interest, 
the  complaint  must  contain  an  allegation  that  he  so  elects,  or  he 
can  only  recover  the  interest.'  A  bond  with  a  blank  for  the 
name  of  the  obligee  cannot  be  recovered  upon  at  law  or  in  equity." 
Under  our  Code,  however,  he  could  set  up  a  mistake  in  the  Ijond, 
pray  for  its  reformation  and  recover  the  amount  in  the  same 
action.  When  a  father  gave  a  bond  for  a  £1,000  for  his  son's 
fidelity,  and  he  embezzled  £200,  which  the  father  paid  and  re- 
quested the  obligor  not  to  trust  him  further,  but  he  did  so,  and 
the  son  embezzled  £1,000  more,  it  was  held  the  father  was 
liable,  but  only  for  one  thousand  in  all  f  and  the  surety  cannot  by 
notice  terminate  his  liability  for  future  defaults  or  embezzlements 
by  the  party  for  whose  fidelity  he  is  surety.* 

Breach,"  how  alleged. — The  party  suing  another  for  breach  of  a 
contract,  requiring  concurrent  acts,  must  avail  himself  of  the  pro- 
visions of  the  Code,'  or  must  allege  tender  or  offer  of  perform- 
ance ^  of  all  required  by  the  terms  of  the  agreement.* 

Broker.' —  When  a  broker  of  real  estate  has  brought  the  minds 
of  the  vendor  and  vendee  to  an  agreement,  he  is  entitled  to  his  com- 
missions whether  it  has  been  reduced  to  writing  or  not,'"  and  the 
principal  cannot,  after  being  brought  by  the  broker  into  commu- 
nication with  a  purchaser,  revoke  the  broker's  authority,  or,  taking 
the  negotiations  into  his  own  hands  and  completing  the  sale, 
deprive  the  broker  of  his  commissions,"  but  the  mere  fact  that  the 

'  Howard  v.  Farley,  3  Rob.  599.  Addison    on    Contracts,    Addison    on 

^Squire  v.  Whitton,  1  House  Lords  Torts,  Benj.  on  Sales,  Bouv.  Law  Die, 

Cases,  883.  Bouv.   Inst.,   Broom's    Com.,    Broom's 

^  Shepherd  v.  Beecher,  2  Peere  Wil-  Com.  on  Common  Law,  Chit,  on  Con- 

liams,  389.  tracts,  Cliit.  Pl.,Cowen's  Tr.  (Kingsleys 

*  Pitman's  Pr.  and  Surety,  52 ;  Theo-  ed.),  Daniell's  Cli.  Pr.,  Edwards  on  Fac- 

bald's  Pr.  and  Surety,  100.  tors  and  Brokers,  Estee's  PI.  and  Pr., 

^  Upon   the    subject    generally,  see  Hllliard  on  Torts,  Kent's  Com.,  Pars. 

Chittv's  PI.,  Gould's  PI.,  Conw.   Rob.  on  Contracts,  3  Conw.  Rob.  Pr.,  4  id., 

Pr.,  Estee's  PL,  Selw.  N.  P.,  Stephen's  6  id.,  Selwyu's  N.  P.,  Smith's  Man.  of 

PL,  Story's  Eq.  Jur.,  Story's  Eq.  PL  Common  Law,  Stephen's  Com.,  Story 

^  Section  162.  on  Sales,  1  Wait's  Law  and  Pr.,  Smith. 

'  Smith  V.  Wright,  1  Abb.  243,  Court  on  Contract,  405  marg.  p. 

of  Appeals  ;  Dunham  v.  Mann,  8  N.  Y.  '"  Barnard  v.  Monnot,  33  How.  440, 

508;  i/e«<er  V.  ,7«?^<?«,  11  N.  Y.  453;  Mc-  3  Keyes,  203;   Wayland  v.   Lysen,   9 

kettv.  B rice,  22  Row.  Idl ;  Frey  v.  John-  Abb.  N.  S.  79;  Hague  v.   O'Connor, 

son,  id.  324,  325  ;  Baker  v.  Biggins,  21  41  How.  287. 

N.  Y.  397 ;  Pattridge  v.  Qildermeister,  "  Stillman  v.  Ifitchell,  2  Rob.  523, 

1  Keves,  93.  affirmed   in   Court  of  Appeals,  id.  539 

«  Husted  v.  Craig,  36  N.  Y.  223.  note  ;  Hague  v.  O'Connor,  41  How.  287  ; 

'Upon   the    subject   generally,    see  Lincoln  v.  McClntchie, 10  Am.  L.li. is. S. 

Russell's  Law  of  Factors  and  Brokers,  634  ;  Keys  v.  Johnson,  68  Penn.  St.  42. 


CII.  IV  A.]       COMPLAINT   IIST   PARTICULAR   CASES.  805 

broker  iutroduced  tlie  piircliaser  to  the  seller  will  not  entitle  him 
to  his  commissions,  unless  it  appear  that  the  introduction  was  the 
foundation  on  which  the  negotiation  proceeded.'  It  must  appear 
that  the  agency  of  the  broker  was  in  fact  the  procuring  cause  of 
the  sale."  But  if  the  negotiations  in  fact,  and  in  good  faith,  fall 
tlirough  and  are  abandoned,  and  new  ones  afterward  spring  up, 
resulting  in  a  sale,  the  broker  is  not  entitled  to  his  commissions,* 
nor  if  the  negotiations  were  begun  by  the  principal  and  carried  on 
without  the  interference  of  the  broker  ;*  nor  unless  a  sale  takes 
p];ice.' 

One  neighbor  who  introduces  a  purchaser  to  another  is  not 
entitled  to  commissions  as  a  broker.*  but  he  may  recover  the  reason- 
able value  of  his  services ;'  nor  can  a  broker,  employed  by  dif- 
ferent parties  to  exchange  their  lands,  recover  commissions  from 
both  of  them  ;*  the  broker  must  show  an  agency  on  his  part  in 
effecting  the  sale,'  and  an  employment  by  the  vendor  to  effect  a 
sale;'"  and  when  his  employment  is  special  he  must  effect  a  sale 
according  thereto  "  unless  the  principal  adopt  the  sale  made  and 
takes  the  benefit  of  it.'"  If  a  broker  report  sales  at  less  than  the 
amount  realized,  the  difference  may  be  recovered,  but  commis- 
sions theretofore  paid  cannot  be  recovered  back."  If  two  brokers 
are  employed,  only  the  one  effecting  the  sale  is  entitled  to  com- 
missions, although  the  other,  hearing  of  the  negotiations,  called  on 
the  purchaser  and  urged  him  to  make  the  purchase.'*  A  broker 
is  entitled  to  commissions  if  he  assist  in  negotiating  a  sale, 
although  the  purchaser  be  brought  to  him  by  the  principal.'^  A 
broker  for  negotiating  a  charter  of  a  vessel  to  a  party  is  not  2)er  se 
void.  Where  a  broker  negotiated  such  a  contract  at  $200  per 
day  and  the  government,  without  his  consent,  reduced  it  to  $120 
per  day,  held  the  change  was  not  such  as  to  deprive  him  of  his 

'  Wilkinson  v.  Martin,  8  Carr  &  P.        ""  Erben  v.  Lorillard,  2  Keyea,  567. 
(34  Eng.  C.  L.)  1 ;  Dreyer  v.  Ranch,  43        ^  Pugsley  v.  Murray,  4  E.  D.  Smith, 

How.  22.  245. 

"  McOlave  v.  Paine,  41  How.  141,  3        ^  Goodspeed  v.  Robertson,  1  Hilt.  423  ; 

Sweenv,   407  ;   Dreyer    v.   Ranch,  42  Briggs  v.  Rowe,  4  Keyes,  424. 
How.  22.  1"  Goodspeed  v.  Robertson,  1  Hilt.  423. 

3  Barnard  v.  Monnot,  34  Barb.  91 ;        "  Jacobs  v.  Kolf,  2  Hilt.  133. 
Stillman  v.  Mitchell,  2  Rob.  357,  358 ;        ''^  RedfieM  v.  Tegg,  38  N.  Y.  212  ;  Wes- 

Tcoms  V.  Alexander,  101  Mass.  255.  bett  v.  Eilser,  49  Missouri,  383. 

*  Cushman  v.  Gori,  1  Hilt.  356.  '^  Boston, etc.,-v.  Journeay,  1  Daly,  190, 
»  Pratt  V.  Patterson,  7   Phila.  Rep.  36  N.  Y.  384. 

135  ;  Brennan  v.  Perry,  id.  242.  i*  Briggs  v.  Roice,  4  Keyes,  424. 

•  Lyon  V.  Valentine,  33  Barb.  271.  '^  Redfield  v.  Tegg,  38  N.  Y.  213. 

39 


306  COMPLAIZTT   Ia    PARTICULAR   CASES.        [CII.  IT  A. 

commissions  on  the  reduced  compensation.'  An  agreement  tliat 
the  broker  shall  have  no  commission,  if  the  sale  be  made  by  the 
owners,  means  a  sale  made  to  a  purchaser  found  by  him  wholly 
without  the  broker's  procurement,''  and  this  notwithstanding  the 
broker  gave  the  purchaser  a  wrong  price,  if  the  owner  himself 
conducted  the  negotiations.^ 

Carriers/ — An  action  will  not  lie  by  the  seller  of  merchandise 
against  a  carrier  by  whom  a  fraudulent  purchaser  thereof  hss 
shipped  it  in  the  usual  course  of  business  without  notice  of  the 
fraud,  the  carrier  having  given  the  fraudulent  purchaser  a  nego- 
tiable bill  of  lading.*  A  carrier  who  has  contracted  to  carry 
goods  to  a  particular  point  is  liable  if  he  store  them  at  an  inter- 
mediate point,  although  he  considers  the  further  carriage  thereof 
unsafe.  If  he  consider  such  carriage  unsafe,  he  must  notify  the  con- 
signor thereof,  and  that,  unless  the  goods  are  called  for  at  an  inter- 
mediate point,  he  will  store  them  there.'  Without  notice  of  the 
actual  value  of  a  package,  carriers  have  a  right  to  assume  that  it 
was  of  no  greater  value  than  its  external  appearance  warranted.' 
The  shipper  of  goods,  who  gives  the  carrier  no  intimation  of  the 
object  of  shipping  them,  cannot,  in  an  action  to  recover  damages 
for  not  transporting  them  within  a  proper  time,  recover  as  special 
damages  his  hotel  bills  while  waiting  for  them ;  such  damages  are 
too  remote.* 

The  owner  thereof  shipped  one  thousand  six  hundred  and 
seventy-six  bags  of  meal,  some  of  which  weighed  twelve  stone 
each,  and  some  eight  stone.  They  were  shipped  from  lighters, 
all  mixed  together,  the  carrier  giving  two  bills  of  lading,  one  for 
one  thousand  two  hundred  bags,  and  the  other  for  four  hundred 

*  Eowlwnd  V.  Coffin,  32  How.  300.  Eemedy  for  Torts,  title  Com.  Carrier ; 
^Lincoln  v.  McClatchie,  10  Am.  L.     Hilliard  on  Torts,  same  title;  Kent's 

Reg.  N.  S.  634.  Com.,  Parsons  on  Cont.,  2  Conw.  Rob. 

^  Id.  Prac,  3  id.,  4  id.,  5  id.,  6  id.,  Sedg.  on 

*  Upon  the   subject   generally,    see  Dam.,  Selwyn's  N.  P.,  Shear.  &  Redf. 
Angell  on  Carriers,  Chitty  on  Carriers,  Neg.,  Smith's  Man.  of  Com.  Law,  Ste- 
Redfield    on    Railways,    Addison    on  phen's  Com.,  1  Wait's  Law  &  Prac. 
Cont.,  Addison  on  Torts,  Benjamin  on  ^  Western,  etc.,  v.  MursJiall,  1  Trans. 
Sales,    Blackstone's    Com.,    Bouvier's  App.  3GG,  6  Abb.  N.  S.  280. 

Inst.,  Broom's  Com.,  Broom's  Com.  on  •*  Va7i  Winkle  v.  Adams'  Ex.  Co.,  3 

Common  Law,  Chitty  on  Cont.,  Chitty 's  Rohi.  59. 

PI.,  Co  wen's  Treatise  (Kingaley's  ed.),  ■"  Warner  v.  Western  Trans.  Co.,  5 

Edwards  on  Bailments,  title  Common  Rob.  490. 

Carriers;  Story  on  Bailments,  Story  on  ^  Woodqer  v.  OreM  Western  Trans. 

Sales,  Estee's  PI.  &  Prac,  title  Common  Co.,  L.  R.',  2  C.  P.  318. 

Carrier;   Greenleaf's     Ev.,    Hilliard's 


on.  IV  A.J       COMrLAINT   IN"    PARTICULAR   CASES.  307 

and  sixty-sevGu  bags  —  gross  thirty- five  tons  nine  him dred  weight 
• — and,  at  the  foot  of  it  was,  "  Contents  unknown,  and  not  respon- 
sible for  weight."  The  bags  were  all  marked  alike,  and  no  means 
were  taken  to  identify  by  marks,  in  the  bills  of  lading,  any  par- 
ticular bags,  and  there  was  nothing  on  the  face  of  the  bills  of 
lading  by  which  the  carrier  could  see  that  they  were  intended  for 
diilerent  consignees.  The  carrier,  by  mistake,  delivered  to  plain- 
tiiT,  the  consignee  of  four  hundred  and  sixty-seven  bags  of  twelve 
stone  each,  several  of  the  bags  weighing  only  eight  stone,  lleld^ 
he  was  responsible  for  not  delivering  bags  of  the  proper  weight.' 
Tlie  owners  of  goods  being  imposed  upon  by  a  fictitious  order 
eent  by  H.,  a  person  employed  by  them  to  obtain  orders,  forwarded 
goods  by  defendants,  addressed  W.  C.  Tait  &  Co.,  Yl  George  street, 
Glasgow,  the  name  and  address  given  plaintiffs  by  H.  There 
was  no  such  firm  as  Tait  &  Co.,  but  II.  had  made  arrangements 
at  71  George  street,  for  receiving  letters  addressed  there  under 
that  name.  On  arrival  of  the  goods  at  Glasgow,  defendants, /o^ 
lowing  usual  course  of  husiness,  sent  a  notice  to  the  address 
appearing  on  the  goods,  requesting  their  removal,  and  stating  that 
the  notice  must  be  produced,  indorsed,  as  a  delivery  order.  H. 
received  it,  indorsed  it  Tait  &  Co.,  and  on  presenting  it  so  indorsed 
obtained  the  goods.  Held,  defendants  were  not  liable,  the  person 
designated  as  Tait  &  Co.  having  got  the  goods  -^  otherwise,  if  the 
delivery  was  not  according  to  the  usual  course  of  business,"  or 
where  the  goods  are  addressed  to  a  person  at  a  particular  street  or 
number,  and  no  such  person  residing  therein  being  found,  the  goods 
are  delivered  to  one  claiming  to  be  the  person  intended,  there 
being  no  proof  he  was  the  person  to  whom  the  shippers  consigned 
the  goods.*  If  a  carrier  fraudulently  represents  the  character  of 
his  vessel  and  thereby  makes  a  contract  with  the  shipper  to  carry 
goods  at  his  risk,  he  to  insure  at  the  carrier's  expense,  but  failing 
to  effect  an  insurance,  because  the  vessel  was  not  as  represented 
before  the  voyage  began,  prohibited  the  carrier  from  taking  the 
goods,  which  he  persisted  in  doing.  Held,  the  shippei-  might  declare 
against  the  carrier,  on  the  theory  that  he  contracted  to  carry  the 

'  Bradley  v.  Bunipace,  1   Hurl.   &        ^  Stephenson  v.  Hart,  4  Biiig.  476. 
Colt.  521.  "*  Duff  V.  Budd,  3  Brod.  &  Bing.  177, 

**  McKean   v.  Mclwr  ,  Law  Rep.,  6     7  Eng.  C.  L. 
Excli.  3(),  89  ;  distinguishing,  Stephen- 
son V.  Hart:  4  Bing.  (13  Eng.  C.  L.)  470. 


y08  C0MPLAT?7T   IX   PAKTICULAE   CASES.       [CII.  TV  A. 

goods  without  limitation  of  his  liability.'  The  carrier  is  not  liable 
for  goods  taken  from  him  by  legal  process,  if  he  immediately 
notify  the  bailor  of  such  taking,'  provided  he  have  not  been  guilty  of 
negligence  in  failing  tq. deliver  the  goods  within  a  reasonable  time. 
Otherwise  he  is  liable^'  and  it  seems  an  action  will  not  lie  where 
he  has  delivered  the  goods  to  the  true  owner  voluntarily."  A  car- 
rier must  ordinarily  deliver  to  the  consignee.  If  usage  excuse 
this,  he  must  always  give  notice  to  the  consignee  of  the  arrival  of 
the  property,*  aijd  the  landing  or  delivery  must  be  at  a  seasonable 
and  proper  time.*  Where  a  carrier  agrees  to  transport  goods  in  a 
certain  ship,  but  takes  a  portion  of  them  on  another,  which  arrives 
at  a  later  day,  the  rale  of  damages  is  not  the  difference  between 
the  market  price  of  the  goods  on  the  day  when  they  ought  to 
have  arrived  and  that  on  which  they  did  arrive,  but  only  any 
depreciation  or  injury  to  the  goods  themselves.* 

Checks. — A  check  payable  to  bills  payable  or  order  may,  without 
alleging  an  indorsement  thereof,  be  declared  upon  as  payable  to 
bearer,  if  the  plaintiff  allege  that  it  was  transferred  and  delivered 
to  him  for  a  valuable  consideration.''  A  check  was  certified  by 
the  defendant,  a  bank,  on  which  it  was  drawn,  to  be  "  good,"  but 
the  draAver  subsequently  notified  the  bank  that  it  was  procured 
by  fraud,  and  stopped  payment ;  on  presentation  for  payment,  the 
bank,  instead  of  erasing  the  word  "  good,"  wrote  on  the  check 
"  payment  stopped,"  and  re-delivered  it  to  the  payee,  who  erased 
the  words  "  payment  stopped,"  and  placed  a  revenue  stamp  over 
the  erasure.  Held,  that  one  who  received  the  check  in  good  faith, 
for  value,  was  entitled  to  recover  thereon  against  the  bank.* 

Claim  and  delivery.'  —  This  action  lies,  under  the  Code,  in 

'  Bauchy  v.  Silliman,  2  Lans.  361 ;  ^  Upon   the    subject   generally,  see 

afRrmed  in  Court  of  Appeals  Feb.  7,  tbe  following  works :  Title  Replevin, 

1871.  Chitty's  PL,  Addison  on  Torts,  Black- 

2  Bliven  v.  Hudson  Riv.  R.  R.,  36  N.  stone's  Com.,  Boua".  Inst.,  Bouv.  Law 

Y.  403.  Diet.,  Broom's  Com.,  Broom's  Com.  on 

^  Micrson  v.  Hope,  3  Sweeny,  561.  Com.  Law,  Estee's  PI.  and  Pr.,  Greeul. 

*  Mierson  v.  Hope,  2  Sweeny,  561  ;  Ev.,   Hilliard's    Remedies    for    Torts, 
Mc Andrew  v.  Whitlock,  id.  623.  Morrison's     Re])levin,    Kent's     Com., 

^  MeAnd7'ew  v.  Whitlock,  2  Sweeny,  3  Conw.  Rob.   Pr.,  4  id.,  5  id.,  6  id., 

623.  Sedg.  on  Dam.,  Selw.  N.   P.,  Smith's 

*  Kirkland  v.  Leary,  2  Sweeny,  677.  Man.   Com.   Law,   500   (1st    Am.   ed.), 
'  Mechanics,  etc.  v.  Sraiton,  36  How.  Stephen's  Com..  2  Wait's  Law  and  Pr., 

190,  3  Keyes,  365.  Williams  on  Pers.  Prop.,  the  various 

*  Nasscm  Ba7ik  v.  Broadway  Bank,     works  upon  Practice,  and  also  Prece- 
64  Barb.  236.  dents. 


CH.  IV  aO     complaint  in  particular  cases.  sou 

a;i   ;_-;ises  where  replevin  might  have  been  mainUiiued  under  the 
Eevised  Statutes.'      If  the  property  be  restored  to  phiintitf,  and 
accepted  by  liim,  before  the  summons  is  served,  the  action  does 
not  he  although  the  papers  were  in  the  sheriff's  hands  for  service, 
and  plaintiti  insisted  upon  the  payment  of  costs  when  the  prop- 
erty was  accepted  by  him.'     But  if  the  plaintitf  obtain  possession 
after  suit  brought  from  a  person  other  than  the  defendant,  the 
action  still  lies.'    AVhere  the  complaint  charges  that  the  defendants 
have  become  possessed  of  and  wrongfully  detain  the  plaintiffs' 
goods  and  chattels,  and  the  plaintiffs  seek  to  recover  upon  the 
giouud  that  the  plaintiff's'  title  thereto  was  never  changed  because 
defendants  pui-chased  them  and  procured  their  delivery  through 
the  means  of  false   representations  as  to  their  solvency,  it  is  not 
necessary  that  the  complaint  should  aver  a  demand  of  the  goods, 
or  contain  an  allegation  of  the  defendants'  insolvency,  or  of  any 
of  the  facts  slijwing  the  alleged  fraud,  for  that  would  require 
the  plaintiff  to  plead  his  proof  instead  of  the  tacts  ;"  but  in  such 
case  an  action  cannot  be  maintained  against  an  assignee  of  the 
purchaser,  who  has  innocently  accpiired  possession  from  the  appa- 
rent owner,  without  a  demand  to  deliver  up  the  property,'  and 
if  there  be  several   assignees  a   demand  must   be   made   upon 
each.'     A  demand  after  suit  may  be  evidence  of  a  conversion 
before  suit."     The  action  lies  against  a  defendant  although  he 
has  parted  with  the  possession  of  the  property'  unless  he  pur- 
chased as  a  inere  agent."     A  fraudulent  purchaser  and  his  assignee 
are  liable  to  a   joint  action.'     The  complaint  must  allege   that 
plaintiff  is  the  owner  of  or  entitled  to  the  possession  of  the  goods, 
alleging  that  defendant  unlawfully  detains  them  is  not  sufhcient."' 
If  an  agent,  who  orders  goods  for  his  principal,  change  the  order  to 
one  for  himself,  and  the  person  furnishing  them  assents  to  such 

'  Boss  V.  Cassidy,  27  How.  416.  «  Jesscrp  v.  Miller,  1  Keyes,  321. 

^  Nosaar  v.    Cor  win,  30   How.  540;  "^  Brockawayv.  Buriiap,l^^^-'\.r:h.oQ^; 

Christie  v.  Curhett,  34  id.  19.  Ellis    v.    Lersner,    48    id.   530,   54(3 ; 

3  Tracy  v.  JVeu)  York, etc.,\)  Bosw.  396.  Nichols  v.  Michael,  23  N.  Y.  264  ;  Mish 

4  Hunter  v.  Hudson  Bioer,  etc.,  20  v.  Fredericks,  12  Abb.   147,  must  be 
Barb.  493.  regarded  as  overruled. 

^  White    V.   Dodds,  42    Barb.   554;        ^  Haskins  y.  Kelley,  I 'Roh.  \%Q. 
Prarw.  V.  Pettis,  47  id.  276  ;  Sluyter  v.        ^  j^ssop  v.  Milln-,  1  Keyes,  321 ;  Lati- 

V,'illiains,    37    How.    109    (see    post,  mer  v.  Wheeler,  id.  468. 
Lomaiid) ;  Jessoj)  v.  Milkr,   1  Keyes,        '"  Scojield  v.  Whitelegge,  10  Abb.  N 

821 ;    Latimer    v.    Wheeler,    id.    468 ;  S.  104. 
Boss  V.  Cassidy,  27  How.  416. 


310  COMPLAINT   IN   PARTICULAR   CASES.       [CII.  IV  A. 

change,  the  principal  obtains  no  title  to  thein ;'  so  where  scrip 
purchased  bj  a  person  as  agent  for  another,  is  taken  in  his 
own  name,  and  has  stood  in  that  way  on  the  books  of  the 
corporation  for  several  years,  it  was  a  legal  inference  that  it 
was  by  consent  or  pennission  of  the  principal.  A  demand  and 
refusal  in  such  a  case  will  not  give  the  principal  the  title  to  the 
scrip,  and  possession  without  a  transfer  would  be  of  no  avail  to 
him.  A  party  cannot  recover  scrip  of  which  the  legal  title  is  in 
the  defendant  by  his  permission  in  an  action  of  replevin.  If  he 
desire  the  identical  scrip,  his  remedy  is  in  equity.  If  damages 
only,  it  seems  he  can  maintain  an  action  on  the  case.'  The  com- 
plaint must  allege  a  general  or  specific  ownership  in  the  plaintiff, 
or  it  is  invalid.  It  is  not  sufficient  to  charge  that  defendant 
"  has  become  possessed  of  and  wrongfully  detains  from  this 
plaintifi""  the  property  claimed.^  While  a  replevin  suit  is  pend- 
ing the  defendant  cannot  maintain  replevin  against  the  plaintiff 
for  its  return.* 

Cloud  upon  title."  —  The  complaint,  in  an  action  to  remove  a 
cloud  upon,  title,  must  show  facts  which  show  that  the  alleged 
cloud  does  not  carry  upon  its  face  the  evidence  of  its  invalidity.* 
K  evidence  aliunde  be  required  to  establish  the  invalidity  the 
action  hes;''  as  where  the  deed  should  have  been  to  the  pUiintiff 
instead  of  the  defendant."  An  action  will  lie  to  determine  the 
amount  due  upon  a  mortgage,  and  that  upon  payment  of  the 
amount  found  due  it  be  satisfied  of  record."  And  although  the 
complaint  allege  that  it  has  been  paid  in  full,  the  court  should 
decree  its  cancellation  on  payment  of  the  amount  due  and  costs, 
although  the  complaint  contain  no  offer  to  pay  any  sum." 

>  Maclcay  v.  MacTcay,  1  Lans.  506.  ■>  Ward  v.  Deiccy,    16  N.    Y.    523 ; 

2  Wieeler  v.  Allen,  49  Barb.  460 ;  Hatch  v.  City  of  Buffalo,  88  id.  276 ; 

Wight  V.   Wood,  57  id.  471  ;  Stokoe  v.  Crooke  v.  Andrews,  40  id.  547 ;  Master- 

Eobson,  3  Vesey  &  Bearues,  51, 53,  note,  son  v.  Hoyt,  55  Barb.  520. 

^  Schofield   V.    Wldtdegge,    13   Abb.  •*  Bafalo,  etc.,  v.  Lampson,  47  Barb. 

N.  S.  32*0.  534  ;  Fonda  v.  Sage,  46  id.  109. 

•*  Clark  V.  West,  23  Mich.  343.  »  Sutherland  v.  Rose,  47  Barb.  144  ; 

^  Upon  the   subject    generally,    see  Clarke's  Ch.  321,  mfw^.  p.,  Moak's  note. 

Adams's  Eq.,  Estee's  PI.    and    Prac,  '"  Sutherland  v.  Rose,  47  Barb.  144 

Daniell's  Chan.  Prac,  tit.  Quia,  Timet,  distinguishing  Campbell   v.  Consalus 

Kerr  on  Inj.,  Kerr  on  Frauds.  (1st  Am.  35  N.  Y.  613 ;  Kerr  on  Inj.  (1st  Eng 

ed.)  333  ;  Smith's  Mum.  of  Eq.  (1st  Am.  ed.)  137;  Clarke's  Chy.  306,  marg.p. 

ed.)  396  ;  1  Storv'.s  Eq.   Jur.,  g^  69i-  Moak's  note  ;  Beecher  v.  Ackerman,  ] 

711 ;  Willard's  Eq.  Jur.  338,  et  seq.  Abb.  N.  S.  141,  1  Rob.  30. 

*  Ward  V.  Dewey,  16  N.  Y.  519,  532 ; 
Peck  V.  Brown,  2  Rob.  138-9. 


OT-I,  IV  A.]       COMPLAINT   UN"   PATITICULAR   CASES.  311 

Comraissioaer  of  higliwiiys.  —  A  commissioner  of  higlnvays 
has  no  general  authority  as  sucli  to  borrow  money,  and  a  com- 
plaint which  merely  alleges  that  the  defendant's  predecessor 
borrowed  money  of  the  plaintiff,  and  gave  him  a  note  ther-eibr, 
does  not  state  a  valid  cause  of  action.'  No  action  lies  against 
commissioners  of  highways  for  neglecting  to  repair  a  highwa}',' 
unless  it  be  specially  averred  in  the  complaint  that  they  ^yere, 
at  the  time  of  the  injury,  in  possession  of  the  requisite  amount 
of  public  funds  to  make  the  needful  repairs.'  But  if  they  have 
the  requisite  funds  in  their  hands,  or  tlie  legal  power  to  procure 
them,  they  are  bound  to  repair  highways  and  bridges  out  of 
repair  with  reasonable  and  ordinary  care  and  diligence,  provided 
they  have  actual  or  presumptive  notice  of  the  necessity  for  such 
repairs.  If,  under  such  circumstances,  they  omit  their  duty  they 
are  liable  in  a  civil  action  to  one  M^ho  sustains  special  damages 
from  such  neglect.''  Commissioners  of  highways  are  authorized 
to  maintain  any  action  against  any  railroad  corporation  that  may 
be  necessary  or  proper  to  sustain  the  rights  of  the  public  in  or  to 
any  highway,  and  to  enforce  the  performance  of  any  duty  enjoined 
upon  any  such  corporation  in  relation  to  any  highway  in  their 
town.^  They  may,  notwithstanding,  proceed  against  a  railroad 
company  by  mandamus  to  compel  it  to  restore  a  road  to  its 
former  usefulness.' 

Commission  merchant  or  factor/ —  A  commission  merchant 
wlio  specially  agrees  to  sell  goods  intrusted  to  him  for  sale  for 
the  highest  market  price,  and  to  make  extraordinary  efforts  to 
sell  the  same  for  the  highest  price,  for  which  efforts  he  was  to 

'  Van  Alstyne  v.  Fredajf,  41  N.  Y.  «  People  v.  Troy,  etc.,  37  How.  427. 

17-1 ;  Baker  v.  Loomis,  6  Hill,  4G;j.  '  Upon  the   subject   generally,   see 

*  Young  v.  Davis,  7  Hurl.  &  Norm.  Edwards  on  Factors  and  Brokers,  Ad- 
760,  afGrnied,  2  Hurl.  «&  Colt.  197;  disou  on  Contracts,  Addison  on  Torts, 
Garliiigliome  v.  Jacobs,  2t)  N.  Y.  297,  title  Factor ;  Benjamin  on  Sales,  title 
310;  Oraiiger  \.  Pidaski,  26  Ark.  37.  Factors;  Bouv.  Inst.,  Chitty  on  Cont. 

^  Smith  V.  .WrigJd,  27  Barb.    C21  ;  7narg.  p.  IQit,  Cowen's  Tr.  (Kiug-sley's 

Adsit  Y.  Bracli/,  i  Hill,  631.  ed.),  title  Factor;    Edwards   on   Bail- 

•*  //o«er    V.  Barkhoof,  44  N.  Y.  113 ;  ments,  same  title ;   2  Estee's  PI.  and 

Commission  of  Appeal",  Dec,  1870  ;  see,  Prac.  189,  882,  Greenl.  Ev.,  title  Factor ; 

ali^o,  55  111.  346,  id.318,  54  id.84  ;  ^IusjY  Kent's    Com.,  same  title  ;   Parsons  on 

V.  Brady,  4   Hill,   G31  ;    Robinson   v.  Cont.,  same  title ;   1  Couw.  Hob.  Prac. 

Chamberlain,  '3^  N.   Y.   389;    Orifith  same  title,  2  id.,  3  id.,  5  id.,  6  id.,  Sel- 

V.  Follet,  20  Barb.  620  ;  Hirks  v.  Dorn,  Avyn's  N.  P.,  Smith's  Man.  Com.  Law, 

43  N.  Y.  53,  0  Abb.  N.  S.  47.  title    Factor;    Stephen's    Com.,    same 

*  Laws  1855,  p.  388,  3  Edm.   Stats,  title;    Story  on   Sales,  same   title;   1 
538  ;  Laws  1835,  p.  310,  3  Edm.  Stats.  \Vait's  Law  and  Prac,  same  title. 
533. 


313  COMPLAINT  IN   PARTICULAR   CASES.       [CH.  17  A. 

receive  an  extra  commission,  is  liable  to  the  owner  of  the  goods 
if  he  do  not  make  every  reasonable  and  diligent  effort  to  obtain 
the  highest  market  price  for  the  property.'  But  in  the  absence 
of  a  special  agreement  he  is  bound  only  to  exercise  ordinary  and 
reasonable  care  and  skill."  If  he  sell  contrary  to  instructions,  he 
is  liable,^  but  if  he  be  instructed  to  wait  until  an  expected  law 
has  produced  its  results,  he  may  sell,  after  waiting  a  reasonable 
time  after  its  passage,  if  he  then  sell  with  reasonable  care  and 
prudence.*  Where  a  factor  has  made  advances  upon  property  con- 
signed to  him  for  sale,  the  owner  cannot  control  his  right  to  sell 
at  a  proper  time  and  with  reasonable  skill,  and  re-imburse  himself,* 
provided  the  owner  be  first  requested  to  repay  the  advances  and 
refuse  to  do  so  within  a  reasonable  time,*  unless  the  factor  re- 
ceived the  property  under  instructions  not  to  sell  until  a  certain 
time,  or  in  a  certain  manner,  and  thereafter  made  the  advances 
which  are  then  presumed  to  be  made  under  an  agreement  to 
comply  with  such  instructions.''  A  factor  suing  for  advances 
must  allege  that  the  proceeds  of  sales  of  the  property  consigned 
were  not  sufficient  to  re-imburse  himself,  and  the  amount  of  such 
sales,*  when  he  may  recover  such  deficiency  of  the  consignor 
personally.* 

Consolidated  action.  —  In  a  consolidated  action  it  is  not  neces- 
sary to  serve  a  new  complaint.  The  issues  in  all  the  actions  are 
tried  as  if  raised  by  one  complaint  and  one  answer.  The  sum- 
monses and  pleadings  in  all  should  be  incorporated  in  the  judg- 
ment roll,'"  but  costs  of  only  one  action  can  be  recovered  unless 
the  order  for  consolidation  specially  provide  for  the  recovery  of 
costs  in  all  up  to  the  making  of  the  order." 

Construction  of  deeds.  —  The  grantor  in  a  trust  deed,  as  the 
legal  owner  of  property  conveyed,  cannot  maintain  an  action  to 
obtain  a  construction  of  it.  The  trustee,  or  any  one  requiring  the 
execution  of  the  trust,  may  however  do  so.'' 

'  Linsley  v.  Carpenter,  4  Rob.  201.  '  Brown  v.  McGrnn,  14  Pet.  479. 

*  Milbank  v.  Dennistoun,  10  Bosw.        ^  OiJion  v.  Stanton,  9  N.  Y.  476. 
S82.  '  Blackmar  v.  Thomas,  28  N.  Y.  67, 

» Scott  V.  Rogers,  31  N.  Y.  676  :  Ed-  71. 

wards'  Factors  and  Brokers,  §§  16-24.  '"  2  Till.  &  Shear.  Pr.  283. 

*  Millhank\.Dcinstoun,'i,\'S.Y.'d'iQ;  ^^  Blake  v.  Michigan,  etc.,  17  How. 
revorsins?  1  Bosw.  246.  228  ;  Newman  v.  Og'de.n,  6  Ch.  Sent.  40. 

*  FieUi  V.  Farrinr/ton,  10  Wall.  141.      opinion  of  Willard,  Vice-Cbancellor. 
«  Marfield  v.  Ooodhne,  3  N.  Y.  62  ;        "  Levy  v.  Hart,  54  Barb.  249. 

Brown  v.  McOran,  14  Pet.  479. 


CH.  rVA.]       COMPLAINT   IN   PARTICULAR   CASE?.  313 

Construction  of  wills.'  —  The  executors  named  in  a  will  may 
bring  a  suit  for  construction  of  doubtful  provisions  therein,"  and 
persons  interested  in  personal  property,  bequeathed  by  a  testator 
in  trust,  may  bring  such  a  suit ;  ^  otherwise  as  to  heirs*  and,  it 
seems,  a  mere  legatee/ 

In  an  action  to  obtain  construction  of  a  will,  the  complaint 
should  show  that  the  testator  left  property,  and,  also,  whether 
real  and  personal,  or  both/  The  person  interested  in  the  trust 
property  may,  in  certain  cases,  proceed  against  the  executor  or 
trustee  by  petition  to  compel  him  to  pay  over  the  trust  property 
or  its  increase,  when  the  court  will  construe  the  will  or  trust 
deed.'  A  legatee  may  also  file  a  bill  for  his  legacy,  when  the 
court  will  necessarily  be  obliged  to  give  the  portion  of  the  will 
rehiting  thereto  a  construction.* 

Conversion." — One  who  intrusts  a  bill  for  collection  to  the 
drawer,  who  delivers  it  to  his  attorney  for  the  same  purpose,  can- 
not maintain  an  action  against  the  attorney  who  advances  money 
on  the  note,  and  then  collects  it  for  conversion  of  the  note  or  the 
money  received  in  payment.  The  drawee  being  the  apparent 
owner,  the  bill  is  not  to  be  treated  like  a  horse  or  a  chattel  in  the 
hands  of  one  who  is  not  the  real  owner.'"  One  who  receives  prop- 
erty under  an  agreement  to  pay  for  it  or  return  it,  pays  pait 
and  gives  his  due  bill  for  the  balance,  but  refuses  to  return 
the  property  on  demand,  is  liable  for  converting  it."     The  ven- 

^  See  Adams's  Equity,  Fonblanque's  family,"  to  mean  shall  marry  and  have 

Equity,  Story's  Equity,  Smith's  Man-  cMldren. 

ual  of  Equity,  Willard's  Equity,  title  **  Bowers  v.   Brower,  9  N.  T.   Leg. 

Wills;    Jarman   on   Wills,  Roper  on  Obs.  196,  Court  of  Appeals,  Dec,  1850. 

Legacies,  Redfield  on  Wills,  Williams  ^  Upon    the    subject    generally,  see 

on  Executors.  works  on    Practice,  titles  Conversion, 

*  Hunter  v.  Hunter,  17  Barb.  25,  30 ;  Demand,  Trespass   and  Trover  ;   also 

Tncker  v.  Tucker,^  N.  Y.  408 ;  Smith  Addison   on   Torts,  title    Conversion; 

V.  Smith,  4  Paige,  271.  Blacks.    Com.,    Bouv.    Inst.,    Broom's 

^  Bowers  v.  Smith,  10  Paige,  193  ;  1  Com.,   Broom's    Com.    on    Com.   Law, 

Redfield   on   Wills,  438  ;    Walrath   v.  Cowen's  Treatise  (Kinsrsley's  ed.),  title 

Hdmlji,  21  How.  353.  Trover;  Estee's  PI.  &  Prac..  title  Con- 

■»  Boioers    v.   Smith,    10  Paige,  193 ;  version  ;  2  Greenl.  Ev.,  i^^  G42-648,  1 

Post  v.  Hover,  33  N.  T.  602;   Walrath  Conw.  Rob.  Prac.  504,3  id.,  title  Tro- 

V.  Handy,  24  How.  353.  ver,  Nos.  6, 7,  8  ;  6  Conw.  Rob.  Prac,  ti- 

^  Hobart  College  v.  Fitzhugh,  27  N.  tie  Conversion  ;  Selwyn's  In.  P.,  Smith's 

Y.  133;    Walrath  v.   Handy,  24  How.  Man.  of  Com.   Law"(lst  Am    ed.)  4'.)8, 

353.  ct  seq.,  Steplien's  Com.,  1  Wait's  Law 

"  Walrath  v.  Hnidy,  24  How.  353.  and  Prac  825,  et  seq. 

'  Sp/'m-cr  v.  Spencer,  3  N.  Y.  Leg.  "*  Si/monds  v.  Atkinson,  1  Hurl.  & 

Obs.  1G2,  Walworth,  Ch.,  construing  Norm.  146. 

the  clause,  "  shall  marry  aitd  have  a  "  Person  v.  Civer,  29  II  jw.  432. 

40 


314  COMPLAINT   IIST   PARTICULAE   CASES.       [CH.  IV  A. 

dee  may,  liowever,  teuder  the  amount  unpaid  at  any  time  before 
the  vendor  sells  the  property,  when,  if  the  vendor  refuse  to 
re-deliver  the  property,  he  is  liable  in  trover/  If  the  seller  of 
goods  on  credit  deliver  them  to  the  buyer,  who  was  guilty  of  no 
fraud  in  the  purchase,  the  seller  is  liable  for  conversion  if  he 
retakes  them." 

One  who  obtains  money  intrusted  to  an  agent  for  a  special 
purpose,  with  reason  to  believe  it  is  the  money  of  the  principal, 
is  liable  for  its  conversion/  So  one  who  wins  money  at  gaming 
from  the  plaintiff's  clerk,  having  reason  to  believe  it  to  be  the 
plaintiff's  money.* 

Copyright/ — Using  slips  from  the  plaintiff's  directory  for  the 
purpose  of  procuring-  information  for  another  is  not  an  infringe- 
ment.* At  common  law  the  author  of  a  book,  or  other  literary 
production,  has  a  right  of  property  therein,  and,  until  publication 
with  his  assent,  he  may  restrain  its  publication  by  injunction,'  or 
the  pi'oduction  of  copies  of  an  oil  painting.*  And  the  State 
courts  have  jurisdiction  of  such  actions ;'  otherwise,  perhaps,  when 
the  action  seeks  to  restrain  the  infringement  of  a  copyright  ob- 
tained by  complying  with  the  acts  of  congress." 

Corporations." —  In  an  action  by  a  corporation,  it  is  not  neces- 
Bary  to  allege  that  the  plaintiff  is  incorporated,'"  unless  in  a  case 

^'HutcMngs  v.  Munger,  41  Barb.  396.  Ocrtel  v.  Wood,  40  How.  13  ;  Dennis  v. 

'  Hudet  V.  Reyns,  1  Abb.  N.  S.  27.  Le  Clerc,  1  Orleans  Term.  R.  297. 

3  Ely  V.  Norton,  2  Trans.  App.  221,  »  Woolsey  v.  Judd,  4  Duer,  379. 

3  Keyes,  397.  »  Woolsey  v.  Judd,  4  Duer,  379. 

■•  Caussidiere  v.  Beers,  2  Keyes,  198.        '"  Dudley  v.  Mayheic,  3  N.  Y.  9 ;  see 

5  Upon    the   subject    generally,  see  the  act  approved  July  8, 1870,  re])ealiiig 

Coppinger  on  Copyright,  Cos's  Trade  all  other  acts ;  acts  41  Cong,  public  No. 

Mark  Cases,  Abbott's  U.  S.  Prac,  Ad-  14(5 ;  see  Snow  v.  Judson,  38  Baib.  214; 

aras's  Eq.,  Addison  on   Torts,   Black-  BoucicauU  v.  Fox,  5  Blatchf.  C.  C.  87  ; 

stone's Com.,Bouv.  Inst. .Broom's Com.,  D-d y  x.  Palmer,  G  id.  250;  Boueicault 

Broom's  Com.  on  Cora.  Law,  Conkling's  v.  Wood,  7  Am.  L.  Reg.  N.  S.  538  ;  Crowe 

Treat.,  Daniell's  Chan.  Prac,   Esteo's  v.  Aiken,  4  Am.  L.  Rev.  454. 
PI.  &  Prac,  2  Oreenl.  Ev.,  i5^  510-515  ;         ''Upon    the    subject  generally,  see 

Hilliard   on    Inj.,    Hilliard   on   Torts,  Ang.  .Ife  Ames  on  Corp.,  Dillon's  Munic. 

Kent's  Com.,  Kerr  on  Inj.,1  Conw.  Rob.  Corporations,    Redfield    on    Railways, 

Prac,  6  id.,  t^elwyn's  N.  P.,  Smith's  Shear.  &  Redfield  on  Negligence,  Cox'a 

Man.  Com.  Law,  Smith's  Man.  of  Eq.,  Joint-Stock  Companies,  Wordsworth's 

Stephen's     Com.,    Story's     Eq.    Jur. ,  Joint-Stock      Companies,     Withrow'a 

Story's  Eq.  PL,  Waterman's  Eden  on  American    Corporation     cases,    Grant 

Inj.,  Willard's  Eq.  Jur.  on  Corporations,  Abbott's  Digest  Cor 

*  Morris  v.  Wright,  Law  Rep.,  5  Ch.  porations. 
App.  279  ;  ey^XiWmiwg  Kelly  V.  Morris,        ^'- Phrrnix    Bank   v.   Donnell.  40  N 

L.  R.,  1  Eq.  697,  and  Morris  v.  Ashbee,  Y.  410 ;  Leiglite  v.  Everett,  etc.,  5  Bosw 

L.  R.,  7  id.  34.  716. 

'  Iloyt  V.  McKenzie,^  Barb.  Cli.  320; 


CIT.  IV  A.]       COMrLAINT    IN    PARTICULAR   CASES.  315 

\vliorc'  riglits  arc  claimed,  nut:  because  i)laintiir  is  a  corporation, 
but  ])ursuaut  to  a  ])rivate  act  of  iucor})orati(>n.  In  such  cases  the 
title  of  the  act  should  be  set  out  in  the  coni})Iaint.' 

An  action  lies  by  a  stockholder  against  directors  of  a  joint-stock 
association  or  corporation  who  have  disposed  of  property  thereof 
under  articles  of  consolidation  without  the  consent  of  such  stock- 
liolder.= 

County  court. —  By  the  lifteenth  section  of  the  sixth  cliapter 
of  the  amended  constitution,  these  courts  have  "  the  powers  and 
jurisdiction  they  now  possess,  until  altered  by  the  legislature. 
They  shall  also  have  original  jurisdiction  in  all  cases  where  the 
defendants  reside  in  the  county^  and  in  which  the  damages  claimed 
shall  not  exceed  $1,000 ;  and  also  such  appellate  jurisdiction  as 
shall  be  provided  by  law,  subject,  however,  1o  such  provision  as 
shall  be  made  by  law  for  the  removal  of  causes  into  the  supreme 
court.  They  shall  also  have  such  other  original  jurisdiction  as 
fihall  from  time  to  time  be  conferred  upon  them  by  the  legislature." 
Previous  to  this  amendment,  the  cases  in  M-hich  the  question 
whether  this  court  had  original  jurisdiction  were  numerous  and 
intricate.'  By  chapter  467  of  the  Laws  of  1870  (vol,  1,  p.  1041), 
the  legislature  provided  that  "  the  coimty  courts,  in  addition  to 
the  powers  they  now  possess,^  shall  have  jurisdiction  in  ci\  ii 
actions,  when  the  relief  demanded  is  the  recovery  of  a  sum  of 
money  not  exceeding  $1,000,  and  in  which  all  the  defendants  are 
residents  of  the  county  in  which  the  action  is  brought,  at  the  time 
of  its  commencement,  subject  to  the  right  of  the  supreme  court, 
on  special  motion,  for  good  cauee  .shown,  to  remove  any  such  action 
into  the  supreme  court,  before  trial,  and  also  on  such  removal 
being  made,  to  change  the  vemie  or  place  of  trial."  One  of  the 
essential  facts  necessary  to  confer  jurisdiction  is,  that  "  all  the 
defendants  shall  be  residents  of  the  county." '  It  has  been 
decided  that  the  complaint  in  an  action  in  this  court  should  allege 
"  that  the  defendant  is  a  resid'/nt  of  the  county   in   which  the 

'  Code  §  163 ;  Feeny  v.  Peoples,  etc.,  ^  Sep  Voorhies'  Code,  g  30,  and  notes 

S  Rob.  5!)9.  Wait's  Code,  g  30,  and  notes. 

"^  Blatchford  v.   Boss,  54  Barb.   A1 ;  •*  Code,  §  30. 

Sit.mnel  v.  Holiday,   Woolw.   C.  C.  R.  «  The  notes  to  g  33  of  tlie  Code  may 

400.  and  see  cases  cited,  ante  mavj.  p.  be  profitably  consulted  with  refert-uce 

153.     See  Moak's  note  to  Overend  v.  to  a  similar  class  of  cases. 
Oii>!,  :>,  Enp;,  Rep.  28. 


Bl(5  COMPLAINT   liSr   PARTICULAR  CASES.       [CH.  IV  A. 

action  was  coininenced,"  otlierwise  the  court  has  not  jurisdiction, 
and  the  coniphiint  is  demurrable  under  section  144  of  the  Code.* 

Whether  the  objection  would  be  w^aived  by  an  appearance  and 
answer,  without  objection,  maybe  doubted."  Justice's  courts  are 
courts  of  limited  jurisdiction,  but  it  has  been  held  that  if  a  non- 
resident defendant  be  sued  by  a  long  summons  and  appear  and 
answer  without  objection,  the  court  has  jurisdiction.^  In  the 
latter  cases,  however,  the  court  had  jurisdiction  of  the  defendant 
if  it  had  issued  the  proper  j^rocess.  The  county  court,  however, 
by  the  constitution,  has  no  jurisdiction,  no  matter  what  the  pro- 
cess, unless  the  defendant  be  a  resident  of  the  county.  A  well- 
drawn  complaint  in  this  court  should  certainly  allege  the  facta 
showing  jurisdiction.  If  the  defendant  was  in  fact  a  resident  of 
the  county,  the  court  would,  perhaps,  be  held  to  have  jurisdiction 
on  such  proof  being  made  aliunde. 

Covenant/ — Where  a  lease  contained  a  covenant  that  the 
lessee  w^ould  not,  during  the  last  year  of  the  term,  sell  or  remove 
from  the  demised  premises  any  of  the  hay,  straw  or  fodder  which 
should  arise  and  grow  on  said  lands,  he  is  liable,  if  during  the 
last  year  he  remove  hay,  straw  or  fodder  which  grew  on  the  lands 
during  the  previous  years.^ 

The  assignee  of  a  lease  is  liable  for  the  breach  of  a  covenant 
running  with  the  land,  although  the  action  is  not  commenced 
until  he  has  assigned  the  premises."  A  covenant  of  seizin  is  broken 
the  moment  it  is  made,  if  at  all.  It  is  not  a  guaranty  against  a 
possible  judgment  of  a  court  which  may  invalidate  a  proceeding 
through  which  the  grantor  obtained  his  title,  as  the  setting  aside 
of  a  sale  in  a  mortgage  foreclosure.'     Although  the  lessee  cove- 

•  Judge  V.  Hall,  5  Lans.  69.  Broom's  Commentaries,  Broom's  Com- 

5  See  Frees  v.  Ford,  6  N.  Y.  176;  mentarieson  the  Common  Law,  Estee's 
Mahaney  v.  Penman,  1  Abb.  36  ;  Fair.  Pleading  and  Practice,  Greeuleaf  s 
bankx  v.  Corlies,  3  E.  D.  Smith,  582, 1  Evidence,  Kent's  Commentaries,  Con- 
Abb.  loO;  Harriott  v.  Van  Cott,  5  way  Rob.  Pr.,  vols.  1,  3,  3,  4,  5,  6, 
Hill,  285 ;  Bowne  v.  Miller,  6  id.  496  ;  Sedg.  on  Damages,  Selwyn's  N.  P., 
Burcjhart  Y.  Bicc,,2T>Q\\\o,\)^.  Smith's    Manual  Common  Law,   Ste- 

^  Clapp    V.    Graves,   26    N.    Y.    418;  phen's  Commentaries,  Taylor's  Land- 
overruling  Bohinson  v.  West,  11  Barb,  lord  and  Tenant,  1  Wait's   Law   and 
309  ;  and  in  etfect,  Snyder  v.  Goodrirh,  Practice,    1    Cliitty's   Pleadings,    Ste- 
2  E.  D.  Smith,  84  ;  Willinqs  v.  Wheeler,  plien's  Pleadings. 
28  Barb.  669,  17  How.  93.  *  Gale  v.  Bates,  3  Hurl.  &  Colt.  84. 

■*  Upon    the    subject    generally,   see  *  llarley  v.  King,  2  Cromp.,  Mees.  & 

Addison  on  Contracts,  Cliitty  on  Con-  Rose.  18,  5  Tyrrw.  092. 

tracts,    Parsons    on    Contracts,    Black-  '  Coit  v.  McBeynolds,  2  Rob.  655. 
Btone's     Commentaries,     Bouv.     Inst., 


CII.  IV  A.]       COMPLAINT   IN   PARTICULAR  CASES.  317 

aant  lo  pay  all  taxes  assessed  on  the  premises  during  the  terni  if 
he  do  not,  the  lessor  can  only  recover  nominal  damages  if  he 
bring  snit  before  himselt;  payir.g  them/  so  that  it  he  desire  to  re- 
eove?  the  amount  of  the  taxes  he  should  allege  the  amount 
thereof  and  that  he  has  paid  them. 

A  covenant  in  a  deed  to  pay  half  the  expense  of  a  partywall, 
when   used  by  the   party,  runs  with  the  land,  and  the  owner 
thereof  is  liable  upon  such  covenant,  if  he  use  the  wall.      Une 
who  accepts  a  deed  poll  with  a  covenant  therein  on  his  part,  is 
liable  thereon.'     A  covenant  not  to  use  premises  as  a  beer  shop,  or 
other  offensive  purpose,  will  be  enforced  against  ^  tenaf  J^^  ^;f  ^ 
no  notice  thereof,  in  fact.^     So  a  covenant  not  to  build  beyond  a 
-^ertain  line  runs  with  the  land,^and  binds  one  with  absolute  title, 
If  he  have  notice  thereof.*     An  action  of  covenant  hes  for  an 
eviction  by  lease  for  years,  interrupting  the   possession  ot  the 
owner  of  the  freehold  for  a  certain  term.'  _ 

Creditors'  Mils  and  creditors'  suits/ -Where  one  who  is 
insolvent  transfers  his  interest  in  a  legacy,  for  an  inadequate  con- 
sideration, to  a  party  who  is  aware  of  his  insolvency,  the  creditors 
of  the  assignor  may  maintain  a  suit  in  equity  to  have  their  debts 
satisfied  out  of  the  interest  or  fund  beyond  the  considera  .on 
actually  paid  or  agreed  to  be  paid,  even  though  the  transaction 
was  not  in  fact  fraudulent,  so  as  to  authorize  the  court  to  set  it 
aside  on  that  ground.^     In  an  action  to  reach  the  property  ot^a 

J^Ue.or,  .c,  V.  .......  .  Ko.  I.  id.    -  -  f  fc^^^V^^^f  "^^ 

2  Burlock  V.  FeeH,  ^uuer.yu.     lue  v  lo"^  o  Diipt   fil4    Kerr  on  Inj.  530, 

distinction   between   the   many    cases  Y  105,  2  Duer,  014,  i^eri  j 

uDon  this  subject  are  pointed  out  by  1st  li-ng.  ea 

^editor  of  \he  present  edition  in  a  ..^/^^^^^^iif  S\.  1^^^^^^^ 

2^.-.,   V.   Haaen.ec.,  35  N.  Y.     ^^^^^-^^^^  Uy,    see 

^'Wilson  V.  HarU  L.  R.,  1  Ch.  App.     Moak's  note  *«  Clarke's  Ch    101    303, 

Barne  v.  Madden,  Lloyd  and   Gould,    J'^^^"' ,^*«,\^;^f^^Ei^7 ur.,  Daniell's  Ch. 
493;  Cole  v.  Sims,  23  Eng.   L.  &  Eq.     Eq.,^^^^^lJar^^^p^q•^^^  ^^^^    ^,^^^  ^^ 

^^t- Maxwell  v.  East,  etc.,  3  Bosw.  124;     Inj.,  index,  ^^^,f  JJ^iefJe^ ^TVm- 
Du  Inj.  106,  504,  506,  530, 1st  Eng.  ed. ;     Cliase  v.  Peck,  »1  ^.  1  •  o... 


818  COMPLAINT   I^   PARTICULAR   CASES.       [CH.  IV  A. 

judgment  debtor,  unless  the  complaint  allege  that  an  execution  has 
been  issued  upon  the  judgment  and  returned  unsatisfied,  in  whole 
or  in  part,  it  is  fatally  defective,*  and  it  must  allege  that  the  execu- 
tion was  issued  to  the  county  where  the  defendant  then  resided.* 

A  judgment  creditor  may  bring  a  suit  in  equity  to  remove  a 
fraudulent  or  inequitable  obstruction  to  the  collection  of  his  judg- 
ment. In  such  case  the  property,  out  of  which  the  judgment 
creditor  is  seeking  to  satisfy  his  debt,  must  be  subject  to  the 
judgment,  if  real,  and  to  the  execution,  if  personal  property.  In 
such  cases  the  execution  must  be  outstanding  and  not  returned.' 
Our  courts  have  no  jurisdiction  over  the  property  of  foreign 
governments  within  our  territorial  limits.*  In  a  suit  by  one 
creditor,  on  behalf  of  himself  and  others,  no  other  creditor,  before 
judgment,  can  intervene  or  exercise  any  control  over  it.*  The 
complaint,  in  a  creditor's  suit  against  an  assignee  for  the  benefit 
of  creditors,  must  allege  that  he  has  the  property  assigned,  or 
some  of  it,  or  the  proceeds  thereof  in  his  hands,  for  if  he  have 
disposed  of  it  according  to  the  provisions  of  the  assignment,  the 
action  will  not  lie,  however  fraudulent  the  assignment.' 

A  surviving  partner  cannot  assign  the  partnership  property  to 
pay  individual  debts,  and,  if  he  do,  the  assignment  will  be  fraud- 
ulent and  void.'' 

Custom  or  usage/  —  If  the  contract  or  cause   of  action   be 

explained  or  otherwise  aifected  by  a  custom,  not  universal  or 

general  in  its  character,  it  should  be  set  out  in  the  complaint,* 

but  if  the  custom  be  general,  as  the  custom  of  merchants,  it  need 

not  be  pleaded.'"     A  particular  or  local  custom  must  be  averred," 

'  Bftardsley,  etc.,  v.  Foster,  36  N.Y.  561.  Broom's  Commentaries,  Broom's  Com- 

The  authorities  as  to  the  requisites  of  Bientaries  on   Common   Law,  Chitty's 

a  creditor's  bill,  and  the  issuing  and  Pleadings,    Cowen's   Treatise    (Kings 

return  of  an  execution,  will  be  found  ley's  ed.),  Edwards  on  Bailments,  Story 

collected  by  the  author  of  the  present  on    Bailments,   Edwards'    Promissory 

edition  in  Clarke's   Ch.  101,  303,  597,  Notes,    Story    on    Promissory    Notes, 

marg.  pp.  Estee's  Pleadings  and  Practice,  Green- 

'^  C'M^  V.  J5rrtce,  4  Paige,  809.  leafs   Evidence,  Hilliard's    Rem.    for 

^  Heye  v.  Bolles,  3  Daly,  331 ;  33  How.  Torts,  Hilliard  on  Torts,  Kent's  Com- 

266.  mentaries,  Kerr  on  Injunctions,  Red- 

■*  Leavitt  v.  DcChney,  37  How.  364.  field    on    Railways,    Selwyn's  N.  P., 

"  Mattifion  v.  Demarest,  1  Rob.  717.  Conw.  Rob.  Prac,  Smith  on  Contracts, 

*  Kaupe  V.  Bridije,  3  Rob.  459.  Smith  on  Real  and  Personal  Property, 
'  Loeschigk  v.  Addison ,  3  Rob.  331.  Stephen's  Commentaries,  Wait's  Law 

*  Upon    the    subject   generally  see  and  Practice,  1  Eng.  R.  41,  note. 
A.ddison  on  Contracts,  Parsons  on  Con-  ^  1  Broom's  Com.  67,  68  ;  Coke  npon 
tmcts,    Chitty     on    Contracts,    Black-  Littleton,  ^  365  ;  1  Chitty's  PL  317-38. 
Btone'a    Commentaries,     Bouv.    Inst.,  "'  1  Chitty's  PI.  317-18. 


CH.  IV  A.]       COMPLAIKT   IjST   PAKTICULAR   CASES.  319 

and  t]ie  facts  which  bring*  the  case  within  the  custom  must  be 
also  pleaded.*  If  there  be  a  local  custom  as  to  protesting  notes 
on  a  different  day  than  that  prescribed  by  the  law-merchant,  it 
must  be  alleged.*  It  is  not,  however,  necessary  to  allege  that  the 
adverse  party  knew  of  the  custom,  as  he  is  presumed  to  contract 
with  reference  to  the  custom  of  dealers  in  such  articles.' 

A  custom  cannot,  however,  be  pleaded  to  vary  the  plain  and 
unambiguous  terms  of  a  written  contract.*  In  such  case  the  aver- 
ment of  one  will  be  held  bad  on  demurrer.^ 

Damages/ —  Where  an  averment  of  special  damages  is  neces- 
sary, the  complaint  should  allege  facts  which  show  the  plaintiff 
sustained  them  as  the  proximate  result  of  the  act  complained 
of.'  Immediate  gains  prevented  and  losses  sustained,  provided 
they  are  certain  and  such  as  might  be  naturally  expected, 
may,  under  such  circumstances,  be  averred  and  recovered.*  The 
law,  however,  excludes  uncertain  and  contingent  profits'  and 
gains  or  profits  of  collateral  enterprises,'"  but  special  profits  or 
losses  not  the  natural  result  of  a  breach  cannot  be  recovered, 
unless  it  be  averred  and  shown  that  the  special  circumstances, 
under  wdiich  the  contract  was  made,  and  from  which  the  injury 

'  Gould's  PI.,  ch.  3,  §  16  (p.  46,  4th.  Inst.,  Broom's  Com.,  Broom's  Com,  on 

ed.) ;  4  Conw.  Rob.  Prac,  377-79  ;  6  id.  Com.     Law,    Broom's     Maxims,     105, 

799-801.  Chitty  on  Cont.,  Chitty  on  PL,  Estee's 

'■^  4  Couw.  Rob.  Prac.  438;   Jackson  PL  and  Prac,  Greenl.  Ev.,  Kent's  Com., 

V.  Henderson,  3    Leigh   (Va.)    106;    6  Parsons  on  Cont.,  Parsons  on  Bills,  Red- 

Conw.  Rob.  Prac.    799-801.     For   pre-  field  on  Railw..  3  Reeve's  Hist.  Com. 

cedents  as  to  pleading  customs  see  3  Law   (Finlason's   ed.),  57,  610,  Conw. 

Chitty's  PL  308-310;  see,  also,  voL  3,  Rob.  Prac,  vols.  1,  3,  3,  4,  5,  Selvvyn's 

index,  title,  Prescription.  N.  P.,  Shear.  &  Redf.  on  Neg.,  Smith's 

^  Whitehouse  v.  Moore,  18  Abb.  143 ;  Man.  Com.  Law,  Story  on  Sales,  Story 

Pollock  V.   Stables,   13  Q.    B.   64   Eng.  on  Cont.,  Wait's  Law  and  Prac,  Cow. 

C.  L.  Rep.  765.  Tr.  (Kingsley's  ed.),  Williams  on  Pers. 

*  Westcott  V.  Thompson,  18  N.  Y.  367  ;  Prop.,  marg.  p.  67,  and  notes  to  Am.  ed. 
Simmons  v.  La/o,  8  Bosw.  314;  Loin-  ''  Solms  v.  Lias,  16  Abb.  311. 

barclo  v.  Case,  30  How.  118;  Phillips  v.        *  Griffin  v.  Goloer,  16  X.  Y.  489,  Star- 

Briard,  1  Hurl.  &  Norm.  31,  and  cases  bird  v.  Barron,  38  id.  331 ;  Messmore 

cited  in  note  to  Johnson's  ed.,  p.  39;  v.  jV.    Y.,  etc.,  40   id.   433;    Myers  v. 

Hone  V.  Mutual,  etc.,  1  Sandf.  137,  3  N.  Burns,  35  id.  373,  103  Eng.  C.  L.  147, 

Y.  335 ;  see  Goodyear  v.  Ogden,  4  Hill,  note  and  cases  cited  ;  Bunlop  v.  Hig- 

191;    Muncey    v.    Dennis,   1    Hurl.    &  gins,  1  House  Lords  Cas.  381;   Daois 

Norm.  316  ;  Gropver  v.  Cook,  Law  Rep.,  v.  TaUott,  14  Barb.  613,  634, 
3  C.  P.  194  ;  Ehle  v.  Chittenango  Bank,        ^  Griffin  v.  Goloer,  16  N.  Y.  489  ;  Mil- 

34  N.  Y.  548.  ton  ^.'Hudson  Eider,  etc.,  37  id.  314; 

^  Philli2)S  V.  Briard,!  Rnvl.  & 'Sovm.  Hamilton    v.   McPherson,    38   id    73 

31.  76;  Hoey  v.  Felton,  11  C.  B.  N.  S.  143 

*  Upon   the    subject,   generally,   see  103  Eng.  C.  L.  Rep. 

Sedgwick     on     Damages,    Mayne    on         '"  Masterson    v.    Mayn,    7  Hill,  Gl 
Damages,  Addison  on  Torts,  Addison     Story  v.  W.  Y.,  etc.,  ^ '^   Y  85. 
on  Contracts,  Benjamin  on  Sales,  Bouv. 


820  COMPLAINT   IN   PAP.TICULAE   CASES.       [CH.  IV  A. 

resulted,  were  communicated  to  defendant  and  kuo\^Ti  bj  him.' 
No  averment  of  special  damages  is  necessary  when  plaintiff  seeks 
to  recover  the  difference  between  the  agreed  price  and  the  actual 
value  of  the  property  contracted  for.''  The  plaintiif  cannot 
recover  for  prospective  loss  of  services  or  damages  from  the  injury 
complained  of  without  averring  them." 

If  properly  alleged,  such  damages  may  be  recovered,*  as  what  a 
party  will  be  compelled  to  pay  for  necessary  and  reasonable 
medical  services,  funeral  expenses,  etc.,  though  there  be  no  aver- 
ment they  have  been  in  fact  paid,^  and  so  though  paid  by  another.* 
So  the  costs  of  an  action  against  a  principal  not  bound  may  be 
recovered  of  the  agent  ou  averment  of  the  bringing  and  expense 
thereof,^  or  against  a  seller  with  warranty,*  but  when  a  party 
knows  an  agent's  powers  he  cannot  recover  against  him  on  an 
imjjlied  warranty  of  authority.'  In  slander  not  actionable  jper  se 
the  plaintiff  must  aver  special  damages."  When  the  special  dam- 
ages consist  in  the  loss  of  customers  it  has  been  held  they  must 
be  named,"  but  it  is  doubtful  whether  a  plaintiff  may  not  allege  a 
general  loss  of  business  in  consequence  of  the  slander,  and  recover 
on  proof  thereof —  certainly,  except  in  New  York.'^  A  tenant  may 
recover  of  his  landlord,  who  agreed  to  repair,  the  actual  expense 
of  making  proper  repairs  although  the  landlord  could  have  got 
them  done  cheaper  by  employing  his  own  mechanics."  Where  the 
purchaser  pays  the  agreed  price  of  goods  contracted  for  in  advance, 
on  alleging  and  proving  that  fact,  he  may  recover  the  highest 
market  price  thereof  down  to  the  trial,  provided  the  vendee  com- 
mence his  action  within  a  reasonable  time  and  prosecute  it  w^ith 

'  Bryant  v.  Am.,  etc.,  1  Daly,  582.  "  Tobias  v.  Rowland,  4  Wend.  537 ; 

2  Loraway  v.  Perkins,  10  N.  Y.  371.  Hallock  v.  Miller,  2  Barb.  630 ;  Linden 

»  Oilligan  v.  i^.  F.,  etc.,  1  E.  D.  Smith,  v.  araham,  1  Duer,  670, 11  N.  Y.  Leg. 

453,461.  Obs.  186;   Knickerbocker  v.  Ecclesine, 

"^  Curtis  V.  Rochester,  etc.,  18  N.  Y.  11  Abb.  N.  S.  388. 

534;    Drew   v.  Sixth  Av.,  36   id.   49;  '^  Townsend's   LibeL    etc.,    ^    345; 

Williams   v.    Vanderbilt,  38    id.   217,  Evans    v.  Harries,  1  Hurl.   «Sj  Norm. 

235.  351,  38  Eng.  Law  and  Eq.  347  ;  Ilamil 

5  Boeder   v.   Ormsby,  23  How.  270 ;  ton  v.  Waters,  4  Up.  Can.  Rep.  24,  O. 

Crouch  V.  Parker,  40  Jiarb.  94.  S.  ;     McLaughlin    v.    Welsh,  10   Irish 

*  19  Ohio  State  Rep.  N.  S.  569.  Law  Rep.  19,  a  well-considered  case  in 
'  Wliite  V.  Madison,  36  N.  Y.  117.  the    Irish    King's    bench     against     a 

*  Fake  v.  Smith.  7  Abb.  N.  S.  108,  Romish  priest  for  publishing  of  plain- 
107;  Cherry  v.  McDougal,  L.  R.,3  Priv.  tiff,  a  miller,  that  iie  had  been  excom- 
Council,  24.  mnnicated,  whereby  his   mill  was  de- 

^Aspininallv.  Torrance,  \  J j2in?,.^%\.    serted    and    he    was    avoided    by  his 
'"  Townsend's  Libel  and  Slander,  55     neighbors. 
345.  ^'^  Myers  v.  Burn':,  35  N.  Y.  .63. 


en.  IV  A.]       COMPLAINT  IN"   PARTICULAR  CASES.  321 

due  diligence/  otherwise  if  tlie  seller  on  the  day  of  delivei}'  give 
notice  of  Lis  inability  to  perform  and  offer  to  retni'n  the  purchase 
price  and  keep  the  tender  good."  An  allegation  that  defendant 
obstructed  plaintiff's  way  so  that  plaintiff  and  his  servants  were 
compelled  to  go  by  a  longer  route,  and  thereby  the  work  of  plain- 
tiff and  his  servants  was  necessarily  consumed  to  a  greater  extent, 
and  the  plaintiff  was  prevented  from  employing  his  servants 
during  such  excess  as  he  otherwise  would  have  done  is  a  sufficient 
allegation  of  peculiar  damage  to  the  plaintiff.^ 

Demand/ —  In  ejectment  against  the  purchaser  of  real  estate, 
the  plaintiff'  need  not  aver  a  demand  of  the  purchase  price, 
tender  of  a  deed*  or  demand  of  possession.'  Ordinarily  no 
demand  need  be  made  of  one  who  receives  money  to  the  use  of 
another,  but,  if  necessary,  a  denial  of  the  owner's  rights  renders 
one  unnecessary.''  The  holder  of  a  note,  payable  at  a  particular 
place,  need  not  allege  demand  thereof  thereat,*  although  the 
maker  may  by  answer  show  readiness  there,  and  by  pleading  the 
same  and  bringing  the  money  into  court,  prevent  the  recovery 
of  interest,  and  also  recover  his  cost ;'  otherwise  as  to  a  note  pay- 
able on  demand  at  sight}"  Where  goods  are  delivered  by  mistake 
to  one  who  lias  no  right  to  them,  and  he,  instead  of  endeavoring 
to  correct  it,  lends  himself  to  favor  it,  and,  without  authority* 
performs  services  respecting  them,  and  claims  thereby  a  lien,  he 
may  be  regarded  as  a  wrong-doer  from  the  beginning,  and  an 
action  will  lie  against  him  without  demand."  Where  the  time 
for  performance  of  an  agreement  to  sell  personal  property  is  not 
fixed,  an  action  for  non-performance  cannot  be  maintained  until 

'  Sedg.  Dam.  260,  311  marg.  pp.  Kerr  on  Inj.,  Parsons  on  Cont.,3  Conw. 

"^  Startup  V.  Curtazzi,  2  Cromp.,  Mees.  Rob.  Prac,  4  id.,  Selwyn's  N.  P.,  Tidd'a 

&  Rose.  165.      The  note  at  the  end  of  Prac,  Wait's  Law  and  Prac. ;  and  see, 

this   case   does    not   state  the  law  as  particularly,  1  Austin's  Jur.   (3d  Eng. 

settled  in  New  York  and  several  other  ed.)  485-492,  for  the   principles   upon 

states.    See  Sedg.  Dam.  supra,  4th  edi-  which  the  propriety  and  necessity  of 

tion.  demand  is  or  should  be  applied. 

2  Blngrave  v.  Bristol,  etc.,  1  Hurl.  &  ^  j{otaling  v.  Hotaling,  47  Barb.  163. 

Norm.  369.  «  Pierce  v.  Tvttle,  53  Barb.  155. 

•*  Upon  the   subject,  generally,  see  "^  Ho^rnrd  y.  France,  Ao '^.  Y.  5^d. 

Addison  on  Cont.,  Addison  on  Torts,  *  Hill  v.  Place,  5  Abb.  N.  S.  18. 

Bouv.  Inst.,  2  Burr.  Prac.  4,  Chitty  on  » Id. 

Cont,,  Chitty's  PI.,  Cow.  Tr.  (Kingsley's  '°  Dixon  v.  Nuttal,  1  Cromp.,  Mees.  & 

ed.),  Ed  w.  on  Bailments,  Edw.  on  Bills,  Rose.  307 ;  Holmes  v.  Kerrison,  2  Taunt. 

Estce's  PI.  and  Prac,  2  Greenl.  Ev.,  323. 

i:^  174-176;    Hilliard's   Remedies   for  ^^  Purves  y.Moltz.2  Abb.  N.  S  409, 

TortB,  Hilliard  on  Torts,  Kent's  Com.,  5  Rob.  653. 

41 


322  COMPLAKTT   IN"   PARTICULAR   CASES.       [CII.  IV  A. 

demand  and   tender.^     A  deraaud  of  performance   and   refusal 

thereof  should  be  alleged  by  plaintiff  where  he  seeks  to  maintain 

his  action  on  the  gi'onnd  that  the  defendant  waived  a  tender,  or 

was  nnable  to  perform."     One  to  whom  property  was  rightfully 

delivered  is  not  liable  to  an,  action  for  its  value  until  demand 

and   refusal   to   deliver  the  same,'   although  an   aA^erment  that 

defendant  wrongfully  detains  the  property  includes  a  demand  ;* 

but  no  demand  is  necessary  against  one  who  obtains  goods  from 

a  wrong-doer,  unless  he  show  he  came  into  possession  in  good 

faith  and  for  a  lawful  purpose.*     A  receiver  of  an  estate,  in  an 

action  against  tenants  thereof,  for  rent,  by  statute  is  required  to 

allege  notice  of  his  appointment  or  demand  of  the  rent  prior  to  the 

commencement  of  the  action.'     The  rule  is  the  same  as  to  any 

grantee  of  the  lessor.     Where  a  surety  agrees  the  principal  shall 

pay  on  demand,  a  demand  of  him  should  be  alleged.^     Where  it 

is  the  duty  of  a  party  to  remit,  no  demand  is  necessary,*  as  in  an 

action  against  a  sheriff,  after  an  exectition  has  expired,  for  moneys 

collected  on  execution.'    An  action  does  not  lie,  until  demand,  for 

moneys  collected  by  an  attorney,'"  unless  he  denies  his  liability 

and  thus  waives  a  demand."      But  a  demand  of  a  legacy  received 

by  an  attorney  is  not  necessary."     So  demand  is  necessary  of 

foreign  factor. *'     A  sheriff  cannot  be  sued  in  trover  for  property 

properly  levied,  but  which  he  was  not   obliged   to   sell   until 

demand  and  refusal.'* 

Where  a  party  has  an  option  to  deliver  one  of  two  things  a 

demand  of  one  is  not  sufficient,"  and  if  an  account  is  payable  in  any 

one  of  several  articles  at  the  option  of  the  creditor  no  action  will 

>  Newton  v.  Wales,  3  Rob.  453.  v.  Hiakoek,  13  Barb.  632 ;  Albany,  etc., 

*  Wheeler  v.  Qarsia,  5  Rob.  280, 40  N.  v.  Dimndorf,  43  id.  446. 
Y.  584.  *  Breioster  v.  Van  Ness,  18  Johns. 

3  Alhny  V.  Wilbur,  2  Woodb.  &  Minot,  134 ;    Dygert  v.  Crane,  1  Wend.  534 ; 
371.  Lillie  v.  Brig,  5  Hill,  395  ;  Crocker  on 

4  fUmser  v  Cowan,  56  Barb.  395  (see  Sheriffs  (2d  ed.),  ^  856. 

ante,  Claim  and  Delivery).  '"  Taylor  v.  Bates,  5  Cow.  376  ;  People 

^  Tallman  v.   Turck,'2()  Barb.  167;  v.  Broiherson,  36  Barb.  664;  Sntterlee 

Williams  v.  Tilt,  36  N.  Y.  323.  v.  Frazer,  2  Sandf.  S.  C.  R.  141. 

« Il'^nt  V.  Wolfe,  2  Daly,  298,  303  ;  "  Walradt  v.  Maynard,  3  Barb.  584. 

IRS  739,  §  146  ;  1  Edm.  St.  690.  '*  Power  v.  Hathaway,  43  Barb.  215. 

1  Nelson  v.  Bostwick,  5  Hill,  37  ;  Tal-  ^^  Lyle  v.  Murray,  4  Sandf.  594 ;  Lil- 

madr/e  v.  Wallis,  1  How.  100 ;  but  see  lie  v.   Jlot/t,  5   Hill,  395 ;    Walden  v. 

Montague  v.  Bassett,  18  Abb.  13,  that  Crofts,  2  Abb.  301,  4  E.  D.  Smith,  490. 

a,  defendant  will   not   be   required  to  '•*  WMtmnrsh  \.  Angle,  3    C.  R.  54< 

accept  such  a  bond.  1  Abb.  PL  and  Forms,  420. 

^  Stacy  V.  Oraham,  14  N.  Y.  492;  ^'^  Lutweller  y.  Linnell,12B&vh.n\2. 
Lyle  V.  Murray,  4  Sandf.  590 ;  Hiekock 


en.  IV  A,]       COMPLAINT  IN   PAETICULAR  CASES.  323 

lie  untiJ  liis  election  as  to  wliieli  and  demand  thereof,'  and  so  of 
lias  option  to  re-purchase  bonds."  A  demand  must  be  made  at  a 
proper  time  and  place.'  If  the  defendant  is  onlj  bound  to  deliver 
at  a  particular  place,  an  unqualitied  refusal  to  deliver  at  another 
will  render  him  liable,*  otherwise  if  he  answer  that  he  is  ready  to 
deli^^er  at  the  proper  place.*  The  refusal  of  a  servant  to  deliver 
goods,  intrusted  to  him  by  his  master,  on  demand  by  a  stranger 
is  not  sufficient  evidence  of  a  conversion,*  nor  will  such  demand 
and  refusal  be  sufficient  to  charge  the  master  unless  the  servant 
refused  under  instructions  from  the  master.'  If  a  master,  for  the 
reason  that  a  servant  had  no  authority  to  make  delivery,  approve 
his  refusal  placed  on  that  ground,  he  is  not  chargeable  with  a  con- 
version.' A  purchaser  from  one  who  bought  upon  condition 
that  title  should  not  pass  until  payment  is  not  liable  without  a 
demand  if  he  do  not  remove  or  change  the  position  of  the  proj)- 
erty;*  otherwise  if  he  sell  it.'  The  plaintilf's  servant  in  his 
absence  may  demand  the  delivery  of  goods  sold ;'  but  a  party 
cannot  ratify  a  demand  by  one  not  his  agent,  so  as  to  render  the  party 
refusing  liable  for  conversion,  or  for  damages.*  A  demand  must 
be  made  sufficiently  long  before  suit  to  enable  a  party  to  comply 
therewith.'  A  demand  of  one  of  two  joint  bailees,  not  partners, 
is  not  sufficient;'"  otherwise  if  partners."  But  a  demand  of  A  is 
good  as  against  B  if  he  is  present  and  remains  silent.'^  One  of 
two  joint  lessors  may  demand  rent  and  institute  proceedings  on 
behalf  of  both,"  and  a  demand  of  rent  of  one  of  two  joint  tenants 
is  sufficient.'*  An  action  will  not  lie  against  a  bank  for  a  deposit 
until  demand,'*  unless  the  depositor's  right  thereto  is  denied." 
iSTeither  will  an  action  lie  against  an  individual  with  whom  money 
was  deposited  until  demanded."  A  demand  of  the  wife  is  not 
sufficient  to  render  the  husband  liable."*     If  a  party  do  not  object 

'  Smith  V.  Tiffany,  36  Barb.  23.  "  Mitchell  v.  Williams,  4  Hill,  13. 

^  Bagary.  King,  38  Barb.  200.  '^  Latimer  v.  Wheeler,  1  Keyes,  471. 

3  Mount  V.  Derrick,  5  Hill,  455.  i^  Qriffln  v.  Clark,  33  Barb.  40. 

4  Dunlop  V.  Hunting,  2  Den.  643.  "  Geisler  v.  Aco.sta,  9  N.  Y.  2>7. 

6  J)a//  V.  Bassett,  102  Mass.  445.  '5  Downes  v.  Ph'mix,  etc.,  6  Hill,  397 ; 

*  Carter  v.  Kingman,  103  Mass.  517.  Marsh  v.  Oneida,  etc.,  34  Barb.  29S. 

''  Squier  V.  Hunt,  3  Price,  68.  "^  Carroll  v.  Cone,  40  Barb.  220. 

"  Bliss  V.  Cottle,  33  Barb.  322,  327,  "  Payne  v.  Slate,  89  Barb.  034,  39  N. 

I  Pars,  on  Cont.  (5tli  ed.)  49  (note  g).  Y.  146. 

»  Burkwell  v.  O'Keef,  32  Barb.  434.  '^  Liangston  v.  Stoessel,  3  BosW  19. 

'0  Mitchell  V.    Williams,  4  Hill,  13 ; 
Je^»op  V.  Miller,  1  Keyes,  338. 


324  COMPLAIISTT   Ilsr   PAETICULAR   CASES.       [CH.  IV  A 

at  the  demand,  on  the  ground  that  his  adversary  shonld  produce 
proof  of  his  authority,  he  cannot  afterward  do  so.' 

Demurrage.^ —  Consignees  are  only  liable  for  an  improper 
detention  of  a  vessel  at  the  place  of  delivery,  arising  from  their 
misconduct  or  neglect,'  but  a  receipt  in  full,  for  freight  and  charges, 
does  not  include  a  demand  for  demurrage."  Although  strict 
demurrage  can  only  be  claimed  when  provision  is  made  for  it  in 
the  contract,  damages,  in  the  nature  of  demurrage,  may  be 
recovered  by  the  ship  owner  for  unwarranted  detention  through 
the  fault  of  the  consignee.* 

Destroying  note.  —  An  action  does  not  lie  against  one  who 
defaces  a  note  by  writing  "  payment  stopped "  across  the  face 
thereof,  provided  the  maker  was  then  solvent  and  continued  so  for 
some  time  afterward.* 

Divorce." — A  complaint  which  alleges  that  when  defendant 
married  plaintiff,  she  had  a  husband  living ;  that  she  represent- 
ed to  plaintiff  she  had  procured  a  divorce ;  but  that  such  divorce 
was  void,  for  fraud  and  collusion  practiced  in  obtaining  it,  does 
not  state  a  good  cause  of  action,  for  such  a  judgment  is  good 
as  against  the  parties  thereto.''  If  a  husband  angrily  expels  his 
wife  from  home,  under  suspicion  of  her  unfaithfulness,  this  is  not 
Buch  an  abandonment  as  justifies  a  limited  divorce  under  the 
statute.*  In  an  action  for  a  divorce  on  account  of  adulter}'-,  the 
plaintiff  must  allege  that  she  did  not  discover  the  same  within  five 

>  Livingston  v.  Stoessd,  3  Bosw.  19.  held  good  in  Horn  v.  Bemmnn,  9  C. 

2  Upon  the  subject,    generally,  see  &  P.  709,  38  Eng.  C.  L.  Rep.     For  libel 

Abbott  on  Shipping,  Addison  on  Con-  in  Admiralty,  see  Benedict's  Adm.  (3d 

tracts,  Benedict's  Adm.  (3d  ed.)  ^  297,  ed.)  588-590. 

pp.  588,  590  ;  Chitty  on  Cont.,  Estee's  ^  McKinley  v.  Am.  Exch.  Bank,    7 

PI.   and   Prac,  3  Kent's  Com.  203,  3  Rob.  633-4. 

Pars.  Cont.    (5th    ed.)    304  ;    Parsons'  "  Upon   the    subject,  generally,  see 

Merc.  Law,  Parsons  on  Admiralty,  4  Bishop  on  Marriage  and  Divorce",  13ish- 

Conw.  Rob  Prac,  Smith's  Man.  Com.  op  on   Married  Women,  Black.  Com., 

Law  (1st  Am.  ed.)  347,  3  Steph.  Com.  Bouv.    Inst.,   Broom's    Com.,  Broom's 

143,  note  h  ;  Story  on  Cont.  Com.on  the  Common  Law,  Daniell's  Ch, 

^  Huntley  v.  Dows,  55  Barb.  310.  Prac,  Kent's  Com,  3  Reeve'ii  llifct  Eng, 

*  }form  V.  Peasant,  7  Bosw.  199,  3  Law  (8th  ed.),  1809  ;  Selwyu's   N.  P., 

Keyes,   16;  Cross  v.  Beard,  36   X.  Y.  Shelford's  Mar.  and  Div.,  Steph.  Com., 

85.     See,  further,  as  to  law  of  demur-  Taylor's  Ev.  (6th  Eng.  ed.) ;  Willard's 

rage,  Abbott  on  Shipping,  title  Demur-  Eq.  Jur.,  Smith's   Man.  Com.  Law,  143 

rage,  and   Fisher's  Eno-.  Digest,  title  (1st  Am.  ed.) ;  W/ioddeson's  Lect\ires. 

Shipping,  XVI  ;  4  Conway's  Rob.  Prac.  '  Kennier  v.    Keiinier,  3  Abb.  N.   S. 

78-80,  204-5,  863-3.       For  forms  of  435. 

compiaints  at  law,  see  Hall  v.  Cazcnove,  *  Barlow  v.   Barlow,  3   Abb.   N.   S. 

4  East,  477, 1  Abb.  Forms,  390,  which  259. 
seems  to  meet  the  objectiou  taken  and 


oil.  IV  A.]       COMPLAINT   IN   PARTICULAR  CASES.  326 

years,*  but  if  the  complaint  allege  the  commission  of  the  offense 
within  five  years  next  before  the  commencement  of  the  action, 
it  is  good.'  The  name  of  the  person  with  whom,  the  place 
where,  and  time  when  the  adultery  was  committed,  should  be 
Bet  forth  in  the  complaint,'  and  it  should  allege  that  the  adultery 
was  committed  without  the  consent,  privity  or  procurement  of  the 
plaintiiT/  If  a  woman  falsely  represent  she  is  pregnant  by  a  man 
and  induce  him  in  consequence  thereof  to  marry  her,  this  is  not 
sufficient  ground  for  a  divorce,^  nor  is  it  ground  for  divorce,  that 
one  who  had  once  been  married  and  procured  a  divorce,  repre- 
sented he  had  never  been  married  f  although  an  action  would  not 
have  lain  for  a  refusal  under  such  circumstances  to  marry  the 
plaintiff/  If  a  woman  be  pregnant  by  one  person  and  falsely 
induce  another  to  marry  her,  under  the  pretense  that  she  is 
virtuous,  this  is  such .  a  fraud  as  justifies  a  court  in  annulling 
the  marriage.*  A  marriage,  consummated  without  knowledge 
of  the  friends,  of  a  girl  eighteen  years  of  age,  through  the  impor- 
tunities of  the  husband,  and  upon  a  false  statement  by  him  as  to 
her  age  and  residence  in  the  publication  of  the  banns  and  register, 
will  not  be  set  aside.* 

Dower.'" — A  widow  is  entitled  to  dower  in  lands  of  which  she 
with  her  husband  executed  and  delivered  a  deed  to  a  grantee, 
although  such  deed  be  subsequently  declared  fraudulent  and 
void  as  to  her  husband's  creditors."  So  if  the  husband  convey 
to  a  third  person  and  he  re-convey  to   the  wife."      An  equi- 

'  Zorkowski  v.  Zorkoioski,  3  Rob.  613.  Dayton  on  Sarr.,  Kent's  Com.,  Kerr  on 

^  Strong  Y.  Strong,  4:  Rc,h.%^\-2.  Inj.,  Parsons  on  Cont.,  Redf.  on  Law 

^  Pavmagiori  v.  Parmagiori,  7  Rob.  of   Wills,  1   Conw.   Rob.   Prac,  3  id., 

303.  Roper  on  Leg.,  Smith's  Man.  Common 

■*  Myers  v.  Myers,  41  Barb.  114.  Law,   Smith's    Man.   of   Eq.,   Smith's 

*  30  Penn.  St.  Rep.  6  Casey,  417.  Real  and   Pers.    Prop.,    Steph.    Com., 

^Glark.(>.\Clarh\VL  Abb.  338.  Story's  Eq.  Jur.,  Tidd's  Prac,  Tyler 

'  1  Parsons' Cout.  (5th  ed.)  68 ;  Peac/i^  on    Ejectment,  Van    Santvoord's    Eq. 

\.  Brown,  Ell.,  Bl.  &  Ell.  790,  96  Eng.  Prac,  Washb.  Real  Prop.,  Wat.  Eden. 

C.  L.  Rep.  on  Inj.,  Willard's  Eq.  Jur. .  Wilkird'a 

^  1  Bish.  Mar.  and  Div.,  §  180  et  seq.  ;  Real  Estate,  Williams  on  Real  Prop  , 

Reynolds  v.  Reynolds,  3  Allen,  605.  Jarm.  on  Wills. 

*•  Field's  Marriage,  3  House  of  Lords  "  Maloney  v.  Horan,  13  Abb.  N.  S. 

Case,  48.  389,  reversing  36  How.  360,  53  Barb. 

'"  Upou  the  subject,  generally,   see  39  ;  Den  v.  Johnson,  3  Harr.  387. 

Bishop  on  Married  Women,  Sc'ribner  ''^  Osterhart  v.   Fanning,  MS.,   Gen. 

on  Dower,  Adams's  Eq.,  Bishop's  Mar.  T.,  Third  Dist.;    Walker^.  Walker,  iKii 

&  Div.,  Black.  Com.,  Bouv.  lust.,  Bouv.  Mass.  169;   Sheldon  v.  Weeks,  7  N.  Y. 

].,aw    Diet.,    Broom's    Com.,    Broom's  Leg.  Obs.  57;  >%/rt.a/i  v.  iiT?.'C,59  Maine, 

Com.    on   Common    Law,   Coke    upon  100 ;  contra,   Meyer  v.  Mohr,  19  Abb 

Lit.,  Daniell's  Ch.  Prac,  Barb.Ch.  Prac,  399,  1  Rob.  333.  ' 


326  COMPLAIKT   IN    PAETICULAK   CASES.       [CII.  IV  A 

table  suit  lies  for  the  recovery  of  dower,'  all  tlie  heirs  are  proper 
parties  although  only  a  portion  are  in  possession."  In  case  of 
alienation  the  value  should  be  computed  at  the  time  thereof,'  and 
damages  for  detention  can  only  be  computed  from  demand  of  the 
dower,*  so  that  a  demand  and  the  time  thereof  should  be  alleged. 
A  woman  divorced  from  a  former  husband  is  not  entitled  to 
dower  in  his  real  estate.^  If  the  husband  convey  real  estate  a  few 
days  before  marriage  it  is  an  equitable  fraud  upon  the  wife,  for 
which  she  may  have  the  conveyance  set  aside ;'  but  it  is  good  at 
law  and  a  bar  until  set  aside.'  Great  lapse  of  time,  with  knowl- 
edge of  the  facts,  will  bar  such  equitable  right.* 

Ejectment.'  —  In  an  action  under  the  Code,  to  recover  the 
possession  of  real  estate,  it  is  only  necessary  for  the  plaintiff  to 
allege,  in  his  complaint,  that  he  is  seized  of  some  certain  estate 
or  interest  in  the  premises  described,  and  entitled  to  the  possession 
of  the  same;  that  the  defendant  is  in  possession  thereof  and  un- 
lawfully withholds  from  him  the  possession  thereof.'"  The  action 
can  only  be  brought  against  a  party  in  actual  or  constructive  pos- 
session, and  the  complaint  should  aver  that  the  defendant  is  in 
possession  of  the  real  estate  in  controversy."  And  it  must  show 
that  the  plaintiff  is  the  owner  of  an  estate  therein  and  entitled  to 
the  possession  thereof.'*  Constructive  possession  by  a  defendant 
is,  however,  sufficient  to  entitle  the  plaintiff  to  maintain  the  action." 
And  so  a  mere  claim  of  title,  if  the  premises  are  not  actually  oc;- 

'  Brown  v.  Brown,  4  Rob.  688,  700,  '  Upon   the  subject,   generally,   see 

31  How.  498  ;    Townsend  v.  Townsend,  Adams  on  Ej.,  Tyler  on  Ej.,  Tidd's  Pr., 

2  Sandf.  S.  C.  R.  711 ;    Van  Name  v.  Chittv  on  Pl.,  Addison  on  Torts,  Au.s- 

Vaa  Name,,  33    How.   249;    Bay   v.  tin's  Jur.  (:3d  ed.),  889,  834,  Black.  Com., 

Leman,'ii  Brown's  Ch.  620,  and  cases  Bouv.   Inst.,   Broom's   Com.,   Broom'.s 

cited  in  Bell's  note.  Com.   on    Com.    Law,    Broom's    Leg. 

*  Van  Name  v.  Van  Name,  23  Max.,  E.stee's  PI.  and  Pr.,  Greeul.  Ev., 
How.  247.  Reeve's    Hist,    of    Eng.    Law,    Couw. 

^Marble  v.  Lems,  36  How.  337;  Rob.  Pr.,  vols.  1,2,3,^6;  Selw.  N.  P., 
Brown  v.  Brown,  4  Rob.  688.  Smith's  Man.  of  Com.  Law,  Stephen's 

*  Marble  v.  Leiois,  36  How.  337.  Com.,  Taylor's  Land,  and  Ten.,  Wash- 

*  10  Ohio  St.  Rep.  596.  burn  on  Real  Prop.,  Hilliard  on  Real 
«  1  Story's  Eq.  Jur.,  t^  267-273,  Coop-    Estate,  Williams's  Real  Property. 

er's  Rep.  Temp.    Brougham,    129,  see  ^'^  The  People  v.  The  Mayor,  28  Barh. 

authorities  cited  in  Perkins's  note  to  240 ;   Walter  v.  Lockioood,  4  Abb.  307. 

Loader  v.  Clarke,   2    MacNaghten   &  "  Schuyler  v.  Marsh,  37  Barb.  350, 

Gordon,  387,  48  Eng.  Ch.  (Banks's  cd.) ;  Pulen  v.  Reynolds,  22  How.  353. 

see  Bush  v.    Woodward,  West's    Rep.  '-  Lane  v.  Gould,  10  Barb.  254  ;  Lay 

88,  and  West's  elaborate  note.  man  v.  Wliiting,  20  Barb.  559. 

■"  Baker  v.  Chase,  6  Hill,  482.  '^  Banyar  v.  Empie,  5  Hill,  48. 

^  Loades  v.  Clarke,  2  MacN.  &  Gord. 
383,  48  Eng.  Ch.  (Banks's  ed.) 


CH.  IV  A.J       COMPLAINT   IF   PAETICULAE   CASES.  327 

cupied/  altliougli  mere  use  as  a  public  street  is  not  sufficient  pos- 
session by  a  municipal  corporation  to  entitle  tlie  owner  to  main- 
tain ejectment  against  such  corporation.*  Otherwise  against  a 
railroad  or  party  claiming  rights  therein.*  And,  unless  the  wifo 
have  a  legal  title  to  real  estate,  she  cannot  be  properly  joined 
with  her  husband  as  a  defendant.*  Formerly,  when  a  tenant  was 
in  possession,  the  action  could  not  be  maintained  against  the  land- 
lord.' By  the  recent  amendment  of  the  Code,  the  landlord  and 
the  tenant  may  be  joined  as  defendants  ;'  and  any  party  claiming 
title  or  a  right  of  possessioji  may  be  made  defendant.''  The 
complaint  in  such  case  should  allege  that  the  tenant  is  in  posses- 
sion of  the  premises,  and  that  the  landlord  is  his  landlord,  and 
claims  title  thereto  or  a  right  of  possession  thereof.  Ejectment 
will  lie  for  any  strip  of  land,  however  narrow,*  but  the  court  will 
not  compel  the  sheriff  to  execute  the  writ  for  the  possession 
thereof  where  it  is  very  narrow  and  is  covered  by  part  of  a  wall." 
Endorser.'" —  An  action  maybe  maintained  by  the  payee  named 
in  a  promissory  note  against  an  indorser  who  indorsed  it  before 
it  was  delivered  to  the  plaintiff."  Tlie  complaint  should,  how- 
ever, in  strictness,  allege  that  the  defendant  indorsed  the  note 
before  its  delivery  to  the  plaintiff  for  a  consideration  moving 
from  him,  with  an  understanding  and  agreement  that  it  should 
be  trans i erred  to  the  plaintiff  for  a  consideration  agreed  upon 
between  the  plaintiff  and  the  niaker  thereof,  and  with  an  intent  to 

'  Banyar  v.  Empie,  5  Hill,  48.  Pars,  on  Cont.,  Conw.  Rob.  Pr.,  vols.  1,3, 

^  Coicenhown  v.  City  of  Brooklyn,  38  3, 4, 5, 6  ;  Sehv.  N.  P.,  title  Indorsement, 

Barb.  13,  14.  Smith's   Man.  Com.  Law,   title   Bills, 

*  Lozier  v.  N.  Y.  Central  R.  R.,  43  Stepli.  Com.,  and,  also,  title  ludorse- 
Bai'b.  4(iG,  4u'J.  ment ;   Tidd's  Pr.,  title   Indorsement ; 

*  Roxe  V.  Bell,  38  Barb.  25.  Wait's  Law  &  Pr.,  title  Indorsement. 

*  Champlain,  etc.,  v.  Valentine,  19  "  Moore  v.  Cros'^,  23  Barb.  534,  19  N. 
Barb.  484  ;  Pulcn  v.  Reynolds,  23  How.  Y.  227,  17  How.  385  ;  Brown  v.  Butler. 
353.  99  Mass.  179  ;  Lewis  v.  Jones,  7  Bosw 

»  Code,  ^118.  371 ;  Waterb'try  v.  Sinclair,  Q  Abb.  2u 

■"  Code,  ,^  118.  (reversed,  but  improperly,  7  Abb.  399  ; 

^Corneftv.  Minot,42'Bsirh.  GO;  Brady  16   How.  '62^);  Richards  v.    Warring, 

V.  Hennion,  8  Bosw.  539.  39  Barb.  43, 1  Keyes,  580.     See  Sckafer 

*  Bowie  V.  Brake,  3  Abo.  161.  v.  Farmers',  etc.',  8  Am.  L.  Reg.  N.  S. 
"'Upon  tiie  subject,  generally,  see  Par-  684,  decided  under  a  statute  of  Penn- 

sons  on  Bills,  Story  on  Bills,  Story  on  sylvania     wliicb    forbade    parol     evi- 

Promissory  Notes,  Edwards  on  Promis-  dence  of  the  agreement.     For  forms  of 

Bory  Notes,  Bouv.  Inst.,  title   Indorse-  complaints  in  such  cases,  see  1  .Abbot's 

ment;  Broom's  Com.  on  Common  Law,  Forms,  230,  0  Abb.  Pr.  Rep.  20-1,  and 

same  title  ;  Chitty.  on  Cont.,  Cow.  Tr.  at  Common  Law,  p.  20,  note  from  M>r- 

(Kingsley's   edition),  Estee's    PI.  and  W-s  v.  IFa^Ajcr,  15  Queen's  Bench,  589,69 

Prac,  title  Indorsement ;  Kent's  Com.,  Eug.  C.  L.  Rep. 


328  COMPLAIKT   IN  PAETICULAE   CASES.       [Cfi.  IV  A. 

give  the  maker  credit  witli  tlie  plaintiff,  tlie  payee  tlierein  named  ; 
that  such  note  was  transferred  to  the  plaintiff  for  the  consideration 
so  agreed  upon,  and  that  prior  to  the  commencement  of  the  action, 
pursuant  to  such  understanding  and  agreement  bj  the  defendant, 
the  plaintiff  indorsed  the  said  note  without  recourse.  Allega- 
tions that  a  note  payable  to  the  plaintiff  was  executed  by  the 
maker,  and  "  for  a  further  inducement  to  the  plaintiff  to  accept 
the  same  was  indorsed  by  the  defendant,  and  was  tlien  delivered  to 
and  indorsed  by  the  plaintiff,"  are  insufficient.  They  do  not  show 
an  agreement  to  become  holden  to  the  plaintiff  for  a  considera- 
tion to  be  advanced  by  him,  nor  do  they  show  any  agreement  that 
the  note  should  become  a  valid  obligation  without  the  plaintiff's 
indoi'sement,'  unless  the  indorser  knew  and  assented  to  an  agree- 
ment, that  he  should  be  liable  to  the  payee,  he  is  not  liable  to  him. 
There  must  be  extrinsic  evidance,  aside  from  the  paper  itself,  that 
the  indorsement  was  made  with  intent  to  give  the  maker  credit 
with  the  payee.''  The  indorser  of  a  non-negotiable  note  ma}^  be 
charged  as  a  maker  without  demand  or  notice  of  protest.  The 
holder  may  write  over  the  indorser's  name  the  real  contract  as 
maker  or  guarantor.'  The  complaint  should,  however,  allege 
that  the  defendant  wrote  his  name  across  the  back  of  the  note  and 
transferred  it  to  the  plaintiff,  who  parted  with  a  valuable  consid- 
eration upon  the  credit  of  the  note." 

Executors  and  administrators/  An  executor  or  adminis- 
trator who  employs  counsel  i& persorially  liable  for  his  services  ;* 
80  for  a  monument  erected  to  the  deceased,  and  he  is  not  liable 
therefor  in  his  representative  capacity.'     So,  an  executor  may  sue 

'  Murphy  v.  Merchant,  14  How.  189.  tice,    Estee's    Pleadings,    Greenleaf  s 

'  Leslie  v.  Payne,  39  Barb.  616,  619,  Evidence,  Kent's  Commentaries,  Kerr 

explaining  Moore  v.  Cross,  supra.  on   Injunctions,    Kerr    on    Receivers, 

^  Cromwell  v.   Heirett,  40  N.  Y.  491 ;  Parsons  on  Contracts,  1    Coiiw.   Rob. 

Richards  v.  Warring,  39   Barb.  42,  1  Prac,  2  id.,  3  id.,  4  id.,  5  id.,  6  id. ;  Sel- 

Keyes,  576  ,    Orisioold  v.   Slocam,   10  wyu's  N.  P.,  Stephen's  Commentaries, 

Barb.  402.  Story's  Equity  Jurisprudence,  Story's 

•*  Richards  v.  Warring,  39  Barb.  42.  E(]uity  Pleadings,  Taylor  on  Evidence, 

^  Upon    the    subject,  generally,  see  Willard's  Equity  Jurisprudence,  Wil- 

Willard  on   Executors,    Williams    on  liams's  Personal  Property. 

Executors,  Roper  on  Legacies,  Jarman  ^  Bowman  v.  Tollman,  2  Rob.  385  ; 

on  Wills,  Redfieldon  Wills,  Adams's  affirmed,  41  X.  Y.  619  ;  Wilcox  y.  Smith, 

Equity,  Addison  on  Contracts,  Addison  26  Barb.  316. 

on      Tortj»,     Au.stin's    Jurisprudence,  ■■  Frrin  v.  Myrick,  41   N.  Y.   315 ; 

Blackstone's      Commentaries,      Boav.  reversing   53   Barb.   76.      The  case  of 

Inst.,  Broom's  Commentaries,  Broom's  M'rrilt    v.    Sc%man,    6    id.    330,    al- 

Commentaries  on  Common  Law,  Chitty  though  reversed   upon   anoihor  point 

on  Contracts,  Daniell's  Chancery  Prac-  (6  N.  Y.  168),  would  seem  not  to  be 


CH.  IV  A.]       COMPLAINT  IN   PARTICULAR   CASES. 


329 


for  and  recover  money,  in  his  own  right,  deposited  by  him  as 
executor,"  and  is  liable  personally  for  the  rent  of  real  estate  leased  to 
the  deceased  and  occupied  by  him  in  closing  the  testator's  business." 
Although  the  plaintiff,  at  the  commencement  of  his  complaint, 
describe  himself  as  executor,  his  complaint  showing  a  personal 
right  of  action,  is  nevertheless  good  as  such.' 

An  executor  or  administrator  who  carries  on  the  testator's  busi- 
ness after  his  death,  for  the  lenefit  of  his  estate,  may  recover  as  such 
in  a  complaint  showing  the  facts  ;*  otherwise,  if  there  be  no  allega- 
tion or  no  proof  that  it  was  carried  on  for  the  benefit  of  the  estate." 

An  executor  is  entitled  to,  and  may,  recover  against  the  lessee  of 
his  testator  for  the  breach  of  a  covenant  not  to  fell  timber,  such 
breach  having  been  committed  in  the  life-time  of  the  testator." 
Where  a  married  woman,  entitled,  as  next  of  kin,  to  the  estate  of 
an  intestate,  died  without  asserting  her  claim,  leaving  her  husband 
surviving,  who  also  died  without  asserting  his  claim,  held,  that  in 
order  to  enforce  the  right  of  the  wife  and  reduce  it  to  possession, 
the  next  of  kin  of  the  husband  were  bound  to  take  out  letters  of 
administration  upon  the  estate  of  both  the  husband  and  the  wife.^ 

The  husband  could  have  sued  as  such  without  letters  upon  the 
estate  of  his  wife,*  even  upon  an  obligation  payable  to  a  third 
person  for  her  benefit."  The  reason  of  the  rule  that  where  the 
husband  does  not  reduce  the  choses  in  action  of  the  wife  to  pos- 
session during  his  life,  letters  must  be  taken  upon  her  estate, 
seems  to  be  that  equity  regards  the  representative  of  the  wife  as 
a  trustee  for  the  representative  of  the  husband."  Independent  of 
any  statute  while  the  wife  was  living  the  husband  could  not  main- 
tain an  action  without  joining  the  wife  for  a  legacy  to  her  during 

good  law  so  far  as  it  held  tlie  action  «  Raymond  v.  MtcJi,  3  Cromp.,  Mees. 

would  lie  against  the  executor  either  &  Rose.  588. 

personally    or   in  his    representative  '  Atty.-Oen.  v.  Partington,  3  Hurl, 

capacity.     See,  also,  Cheney  Y.  Beats,  &  Colt.  193.                       „^  ,t  ^r    -.^/^ 

47  Barb.  523,  525.  *  Ransom  v.  Nichols,  22  N.  Y.  110  ; 

»  CMnev  v.  Beats A'^  Barb.  523  ;  Mer-  Ryder  v.  Hulse,  24  id.  372. 

ritt  V.  Seaman,  6  N.  Y.  168.  ^  HaUted  v.  McGhesney,  2  Keyes,92. 

''  Jermain  v.  Pattison,  46  Barb.  9.  '»  Humphreys  v.  Butler,  West  s  Lh. 

^  Merritt  v.   Seaman,  6  N.  Y.  168;  Rep.  66,  and  cases  cited  in  note.      1  he 

Reynolds  v.  Welch,  1  Cromp.,  Mees.  &  report  of  this  case  in  1  Atkins,  458,  is 

Rose.  580 ;   Harqraves  v.  Holden,  id.,  corrected    by   Mr.  West    from    Lord 

jidte  Hardwicke's   note    book,  commencing 

4  Moseley  v.  Rendell,  L.  R.,  6  Q.  B.  with  the  words  "  The  credits  of  the 
338  ;  Ahhott  v.  Parfitt,  id.  346.  wife  in  the  last  line  of  page  67  of  Mr. 

5  Bolingbroke  v.  Kerr,  L.  R..  1  Exch.  West's  Report." 
222. 

42 


330  CO:HPLAINT  IX   PARTICULAR  CASES.       [CH.  IV  A. 

marriage,  for  an  action  at  law  would  not  lie  for  a  legacy,  and  lie 
was  obliged  to  go  to  equity  where  lie  would  be  obliged  to  make 
proper  provision  for  her  before  payment  would  be  decreed  to  liini. 
In  New  York,  by  statute,  in  case  married  women  die  "  leaving 
descendants^  them  surviving,  the  husband  of  any  such  deceased 
married  woman  shall  be  entitled  to  the  same  distributive  share 
in  the  personal  estate  of  his  wife  to  which  a  widow  is  entitled  in 
the  personal  estate  of  her  husband,  by  the  provisions  of  this 
chajiter  and  no  more.'  The  thirtieth  section  of  the  Revised 
Statutes'  giving  the  husband  all  the  personal  property  of  liis 
deceased  wife  is  not  repealed,*  by  the  statute  of  1867,  so  that  if  a 
married  woman  die  without  leaving  descendants  the  husband  takes 
her  personal  property.' 

An  administrator  appointed  to  administer  upon  the  assets  left 
Tinad ministered  on  the  death  of  the  executor  of  a  testator,  may 
maintain  an  action  against  an  executor  of  such  former  executor  to 
recover  the  assets.'  Such  an  action  is  properly  brought  against 
the  executor  of  the  executor  in  his  representative  capacity,  and 
the  complaint  need  not  allege  that  the  assets  ever  came  to  the 
hands  of  the  defendant.' 

Exempt  property.  In  an  action  against  an  officer  to  recover 
for  the  unlawful  taking  of  property  exempt  from  levy  and  sale  on 
execution,  it  is  not  necessaiy  to  aver  that  fact  in  the  complaint.'' 

Articles  exempt  by  statute  continue  so,  notwithstanding  the 
owner  may  be  on  his  way  to  exchange  them  for  articles  necessary 
for  his  family,  or  even  to  sell  them  for  cash.' 

A  creditor  cannot,  by  creditor's  bill,  reach  a  cause  of  action 
against  a  wrong-doer  for  the  taking  of  exempt  property,'  nor 
even  a  judgment  recovered  for  such  unlawful  taking ;"  otherwise, 

'  Clenrke  v.  Angier,  2  Freeman,  loO,  *  Sharo  v.  Davis,  55  Barb.  389. 

1  Eq.  Cas.  Abr.  164 ;  and  see  Hoven-  »  Hudson    v.   Plets,  11   Paige,   181 ; 

den's  note,  3  Freeman,  160,  ed.  1823.  Andrews  v.  Rowan,  28  How.  126 ;  Tillot- 

2  Laws  1867,  vol.  2,  p.  1929,  §  11 ;  7  son  v.  Wolcott,  48  N.  Y.  188. 

Edm.  St.  169.  •<>  Andrews  v.  Rowan,  28  How.  126 ; 

»  2  R.  S.  75,  2  Edm.  St.  76.  Tillotson  v.  Wolcott,  cited  2  Lans.  187, 48 

*  Laws  1867,  vol.  2,  p.  1929  §  12  ;  7  N.  T.  188.  The  case  of  Mallory  v.  Kor- 
Edm.  St.  169.  ton,  21  Barb.  424,  is  not  cited  in  the 

*  Barnes  V.  Underwood,^!  N.  T.  351.  first  of  above  cases,  but  we  think  the 

*  Walton  V.  Walton,  1  Keyes,  15,  2  cases  in  28  Howard  and  3  Lansing  the 
Abb.  N.  S.  428.  better  law,  and  more  consonant  with 

'  Dennis  v.   Snell,  50  Barb.   95,   34    the  liberal  construction  given  to  ex 
Hew.  467.     The  case  is  again  reported,    emption  acts, 
evidently  by  inadvertence,  54  Barb.  411. 


en.  ITA.T       COMPLAINT  IN   PARTICULAR  CASES.  331 

however,  wl.en  the  proceeds  of  sueh  exempt  property  have  heen 
actually  invested  in  other  property  not  exempt,  lor  it  has  then 

lost  its  distinctive  character."  j„ii„r 

Express  company.'-  An  express  company  is  bonnd  to  deliver 
a  pacLe  sent  by  it  to  the  consignee  personally,  at  his  residence. 
He"  n°ot  bound'to  call  at  the  express  office  for  it,  nor  to  do  niore 
than  to  notify  the  company  where  he  may  be  fonnd  in  the  city  or 
town  tf  he  receive  notice  in  any  manner  that  the  package  haa 
arrived      The  company  cannot  terminate  its  liability  as  a  common 
Clr  by  giving  him  notice  of  its  arrival,  and  that  he  must  call 
for  and  obtain  iC     Nor  does  a  stipulation  in  a  receipt  given  by 
the  company  which  first  received  the  package  innre  to  thebenefat 
of  a  connecting  company.'    Bntif  the  company  deliver  a  package 
of  money,  addressed  to  the  cashier  of  a  bank,  to  an  assistant  receiv- 
ing teller,  who  is  then  acting  as  receiving  teller,  it  is  not  liable 
altliough  the  package  never  came  to  the  possession  of  the  cashier 
or  the  bank.'    An  express  company  which  agrees  to  take  a  promis- 
sory note  to  collect,  and  if  not  paid  on  presentation,  to  protest  it 
tat  neglects  to  have  it  properly  protested,  is  liable  for  the  amount 
of  the  note  if  there  be  no  waiver  of  protest  by  the  mdorser,  and 

the  maker  is  insolvent.' 

False  imprisonmentZ-A  complaint  winch  alleges  that  the 
defendants  maliciously,  and  with  intent  to  injure  the  plamtiti, 
illegally,  and  without  warrant,  arrested  and  by  fo-e^ompel  ed 
her  to  go  to  a  police  station,  and  there  restramed  her  of  her 
liberty  states  a  cause  of  action  for  false  imprisonment,  and  not  lor 
malicious  prosecution,  and  the  question  of  probable  cause  does  no 
arise '  An  arrest  by  a  private  individual  is  justihed  only  ^vhen 
a  feiony  has  in  fact  been  committed,  and  there  was  reasonable 
grSo  suspecl  the  person  arrested,  although  in  t-th  mnocent 
of  its  commission-    but  a  constable  is  justified  m  malung  an 

^ITpon    the  subject,  generally,  see  HilUardj^n.^io^^^-   ^  ^^^^    ^^^  p 

Carriers.  ,   __  •„     i     aao  Corirrw  nn  Dam  .Selwyn's  N.  P.,Stepu. 

^Witheck  V.  Holland,  55  Barb.  443.  f,^^|^Taylor  on  Ev.,  Tidd's  Prac. 

*IIotrhkissv.    Artizan's  Bank,    43  <^of„'^/^^^^^^^ 

Barb.  517,  2  Keyes,  564.  0,0  40  N  Y.  403;  Hawley  ^.Butler 

*T?;-A'S,jec..   g».ra„y.  see        'B..nuj.  f  *»• -^/L  l"'4 
fS"oo™.  oS  ^^b^-:.    a.e^CL>t,  ,e/e.in,,  L.  R„  . 


332  COMPLAINT   ITT  PAETICULAE  CASES.       [CH.  IV  A. 

arrest  without  warrant  thougli  no  felony  has  been  committed,  if 
he  has  reasonable  ground  to  suspect  that  one  has  been,  and  acts 
in  good  faith  and  without  evil  design/ 

A  constable  who  was  immediately  sent  for,  by  one  who  saw  an 
offense,  and  followed  the  accused  a  mile  before  making  the  arrest, 
was  held  to  have  immediately  arrested  him."  False  imprisonment 
will  lie  against  a  complainant  and  an  officer  in  a  criminal  prosecu- 
tion, who  combine  and  extort  money  from  a  party  accused 
although  he  be  in  the  custody  of  the  officer  under  a  valid  warrant, 
issued  upon  a  charge  of  felony.'  A  justice  of  the  peace  has  no  power 
to  commit  a  party  arrested  from  Saturday  night  until  Monday 
morning  unless  he  is  first  brought  before  the  justice.*  If  a  party 
be  arrested  on  a  telegram  by  an  officer  he  must  be  taken,  without 
unnecessary  delay,  before  an  officer  authorized  to  examine  into  the 
case,  and  unless  within  a  reasonable  time  proof  be  given  to  show 
the  suspicion  to  be  well  founded  he  should  be  discharged.* 

An  officer  may  arrest  a  party  guilty  of  breach  of  the  peace  or 
misdemeanor  in  his  presence,"  and  may  lawfully  detain  gambling 
instruments  or  other  similar  property  taken  at  the  arrest  until  after 
the  trial.''  A  private  individual  cannot  justify  an  arrest  without  war- 
rant for  a  misdemeanor^  though  committed  in  his  presence.  In  such 
cases,  unless  the  defendant  plead  that  he  was  an  officer,  his  answer  is 
demurrable,*  nor  can  a  constable,  unless  thcToffense  was  committed 
in  his  presence,  nor  has  he  a  right  to  arrest,  without  a  warrant,  for 
mere  violation  of  a  city  ordinance,  not  a  felony  or  misdemeanor, 
though  committed  in  his  presence.*  A  party  who  merely  points 
out  an  alleged  otfender,  or  states  what  he  knows  about  the  offense, 
without  directing  or  participating  in  the  arrest,  is  not  liable."" 

Excheq.  197,  3  Wend.  350, 1  N.  Y.  Leg.  Hawley  v.  Butler,  48  Barb.  101 ;  but 

Obs.  28.'),  S.  C,  4  Man.  &  Grang.  989,  43  see  S.  C,  54  id.  490. 
Eng.  C.  L.  Rep.,  7  N.  Y.  Leg.  Obs.  89.        «  Willis  v.    Warren,  17  How.   100. 

^  Burns  v.  Erhen,  supra,  54   Barb.  See  1  Burn's  Justice  (30tbed.),  286,  for 

490 ;  Lester  v.  Ferryman,  L.  R.  4  House  a  collection  of  the  cases  as  to  when  and 

Lords,   521,  reversing  L.  R.,  3  Exch.  whomay  arrest  a  party  guilty  of  or  sus- 

197,  5  Cush.  281,  3  Wend.  350  ;  Gordon  pected  of  the  commission  of  a  crime. 
V.  Elphick,   8  N.  Y.  Leg.  Obs.  204,  4        ■>  Willis  v.  Warren,  17  How.  100. 
Exch.  447,  29  How.  473.  »  Phillips  y.  Trull,  11  Johns.  486. 

*  Ilanway  v.  Boultbee,  1    Moody  &        »  Schneider  v.  McLane,  36  Barb.  495, 
Rob.  15.  3  Trans.  App.  266,  3  Keves,  568. 

3  Ilolley  V.  Mix,  3  Wend.  351.  '"  Gordon  v.  Elphick,  8  N.  Y.  Leg.  Obs. 

'^Pratt  V.  Hill,  16  Barb  304.  204, 4  Exch.  445,  disapproving  Flewster 

*  Matter  of  Henry,  29    How.   185 ;    v.  lioyle,  1  Camp.  187  ;  Burns  v.  Erhen, 

1  Rob.  555,  26  How.  273,  40  N.  Y.  463. 


CH.  IV  A.]       COMPLAINT   IIN"   PAETICULAE  CASES.  333 

Where  a  teacher  improperly,  and  iinder  a  claim  for  money  due 
for  schooling,  refused  to  allow  a  mother  to  take  her  son  home 
with  her,  and  kept  him  during  a  part  of  a  vacation,  though  fre- 
quently demanded  by  the  mother,  but  there  was  no  proof  the  son 
Vnew  of  the  demand,  or  that  any  restraint  had  been  put  upon 
him,  held^  that  an  action  by  the  child  for  false  imprisonment 
would  not  lie/  If  a  privileged  person  be  arrested,  an  action  for 
false  imprisonment  does  not  lie,  for  he  is  required  to  plead  his 
privilege."  Where  plaintiff  entered  defendant's  shop  to  purchase 
an  article,  when  a  dispute  arose  between  plaintiff  and  defendant's 
shopman,  who  requested  plaintiff  to  go  out,  but  he  refusing,  the 
shopman  endeavored  to  turn  him  out,  and  an  affray  occurred 
between  them ;  defendant,  coming  in  during  the  affray,  requested 
plaintiff  to  go  out  quietly,  but  he  refusing  to  do  so,  defendant 
gave  him  in  charge  of  a  policeman,  who  took  him  to  a  station 
house ;  held,  defendant  was  justified,  under  the  circumstances,  in 
giving  the  plaintiff  into  the  custody  of  the  policeman  for  the  pur- 
pose of  preventing  a  renewal  of  the  affray. '  But  where  a  police 
sergeant  went  to  the  house  of  a  private  to  see  whether  he  was 
discharging  his  duty,  when  an  altercation  took  place  and  the  pri- 
vate followed  the  sergeant  and  struck  him.  The  sergeant  went 
for  assistance  and  returned  with  two  policemen.  The  private  being 
from  home,  two  hours  after  they  retm-ned  and  told  him  to  go  with 
them.  He  refused,  and,  on  the  sergeant  endeavoring  to  take 
hold  of  him,  the  private  struck  him  upon  the  head  with  a  clock 
weight,  inflicting  a  somewhat  serious  injury.  Held,  the  attempted 
arrest  was  illegal.  That,  although  the  sergeant  might  arrest  if 
there  was  danger  of  an  affray  being  renewed,  there  could  not  be 
said  to  have  been  any  such  danger  in  the  case  when  the  arrest 
was  attempted." 

A  constable,  while  standing  outside  the  defendant's  house, 
saw  him  take  up  a  shovel  and  hold  it  in  a  threatening  attitude 
over  his  wife's  head,  and  heard  him  at  the  same  time  say :  "  If 
it  was  not  for  the  policeman  outside  I  would  split  your  head 
open  ; "  about  twenty  minutes  afterward  defendant  left  his  house, 

*  Herring  v.  Boyle,  1  Cromp.,  Meea.  &  '  Timothy  v.  Simpson,  1  Cromp., 
Rose.  377,  4  Tyrwli.  801.  Mees.  &  Rose.  756,  5  Tyrwh.  344. 

*  Noel  V.  Isaac,  1  Cromp.,  Mees.  &  *  Reg-  v.  Walker,  Dearsly's  Crown 
Rose.  753.  Cases,  358. 


334  COMPLAINT  IN   PARTICULAR  CASES.       [CIL  IV  A. 

Baying  lie  would  leave  liis  wife  altogether,  and  was  taken  into 
custody  by  the  constable,  who  had  no  warrant,  when  he  had  pro- 
ceeded a  short  distance  in  the  direction  of  his  father's  residence. 
Held^  the  constable  was  not  bound  to  arrest  the  defendant  the 
moment  the  offense  was  committed,  but  it  was  sufficient  if  he 
did  so  "  recently  after  the  right  to  do  so  arises,"  and  that  it  could 
not  be  said  that,  because  the  defendant  was  coming  away  from  the 
house,  the  constable  was  hound  to  come  to  the  conclusion  the 
danger  was  over.' 

Forged  check  or  paper." —  Where  the  name  of  a  payee  in  a 
pension  draft  was  forged  to  an  indorsement  and  transferred  to  a 
bank  which  obtained  the  money  thereon,  held.^  that  it  was  liable 
to  an  action  for  money  had  and  received  by  the  payee,'  or  trover 
could  have  been  maintained  against  the  bank  ;*  the  drawee  of  a 
draft  is  bound  to  know  the  handwriting  of  the  drawer;  if  the 
amount  has  been  altered,  the  rule  still  holds  the  drawee  liable,  and 
he  cannot  recover  the  balance  of  one  to  whom  he  paid  the  money.* 
So  a  merchant  who  sends  a  check,  payable  to  A  B  or  order,  to  the 
post-office,  by  a  clerk,  is  not  guilty  of  negligence  which  precludes  his 
recovery  of  a  deposit,  if  the  clerk  open  the  letter,  change  the  word 
"order"  to  "bearer,"  and  draw  the  money."  But  if  one  deliver 
a  check  to  a  servant  for  collection,  and  carelessly  leave  blanks 
which  the  servant  wrongfully  fills  up  for  a  larger  amount,  so 
that  the  banker  has  no  means  of  detecting  the  forgery,  the 
drawer  must  sustain  the  loss.  His  negligence,  in  leaving  the 
blanks,  contributed  to  the  injury,  and  the  servant  was  empowered 
to  obtain  the  money  from  the  bank.  The  principal  will  be  held 
responsible  for  the  manner  in  which  he  does  it.'     So  if  one  sign 

'  Reg.   V.  Light,  Dearsly    &    Bell's  Jour.  305 ;  but  see  Osby  v.  Gonant,  5 

Crown  Cases,  382,  337-9.  Lans.  310  ;  Dodge  v.  National,  etc.,  20 

'^  Upon   the  subject,  generally,   see  Ohio  St.  234,  5  Am.  Kep.  G48 ;  Schaffer 

Chitty  on  Bills,  Edwards  on  Bills,  Par-  v.  McKee,  19  Ohio  St.  526. 

sons  on  Bills,  Story  on  Bills,  Addison  ^TaUiotY.B'nkof  Rochester, 111111,2^)^. 

on  Torts,  Bl.  Com.,  Broom's   Com.  on  ^  National  Park  Bank  v.  Ninth  Na- 

Common  Law,  Cowen's  Tr.  (Kino;slev's  tional  Bank,  46  N.  Y.  77,  reversing  55 

ed.),  Daniell's  Cli.  Prac,  Kerr's  Frauds  Barb.  87,  7  Abb.  N.  S.  120,  and  Na^ 

and  Mistakes,  and  see,  also,  pp.  49-139,  tional  Park  Bank  v.  Fourth  National 

1st  Am.  ed. ;  2  Conw.  Rob.  Pr.,  5  id.,  6  id..  Bank,  7  Abb.  N.  S.  138. 

Selw.  N.  P.,  Smith's  Man.  C.  L.,  and  p.  *  Belknap  v.  National,  etc.,  100  Mass. 

227,   1st  Am.  ed. ;  Smith's  ]\Ian.   Eq.,  376. 

Ste]>h.  Com.,  1  Wait's  Law  and  Prac.  ''  YounyY.  Ch'ote,  4  Bing.  253,13  Eng, 

^  Uolt-nnger  v.  National  Corn  Exch.  C.  L. ;  Morrifion  v.  Biichnnan,  6  C.  &  P, 

Bank,  37  How.  203,  affirmed  bv  Court  18,  25  Eng.  C.  L.  ;  Garrard  v.  liaddan 

of  Api)eals,  Feb.  14,  1871,  3  Alb.  Law  67  Penn.  State  Rep.  82, 5  Am.  Rep.  413. 


CH.  IV  A.]       COMPLAINT   IN"   PAETICULAR   CASES.  335 

a  note  containing  a  material  qualification,  written  in  pencil, 
which  is  erased.'  If  stock  of  a  corporation  be  transferred  on  the 
books  thereof,  nnder  a  forged  assignment,  the  company  is  not 
liable  in  damages?  The  remedy  is  to  compel  the  company  to 
j-ecognize  the  owner  as  still  the  holder  of  so  many  shares  of 
stock,'  but  if  it  has  no  shares  which  it  can  issue,  then  it  will 
be  obliged  to  pay  the  value  of  the  shares,*  for  as  between  the 
company  and  a  hona  fide  purchaser  the  former  must  sustain  the 
loss/  Where  one  receives  counterfeit  money  in  payment  of  a 
debt,  he  may  recover  the  same  if  he  has  been  guilty  of  no  negli- 
gence in  discovering  the  spuriousness  of  the  money  or  returning  it 
after  the  discovery  thereof  ;*  but  if  he  be  guilty  of  negligence  in  not 
returning  it  within  a  reasonable  time  after  discovery  of  its 
worthlessness,  he  cannot  recover.'  A  bill  of  exchange  negotiated 
upon  a  forged  indorsement  of  the  name  of  the  payee,  will,  even 
in  the  hands  of  a  honafide  holder,  be  ordered  to  be  delivered  up 
and  canceled,  and  the  holder  restrained  from  prosecuting  the 
acceptor. '^ 

Fraud." — A  deed  obtained  from  an  old  lady  by  persons  standing 
in  such  relation  as  to  give  them  a  strong  or  controlling  influence 
over  her,  will  be  set  aside  upon  slight  evidence  of  the  exercise 
of  such  influence,  particularly  if  she  be  of  weak  mind  or  very 
aged.'" 

*  Harvey  v.  Smith,  55  111.  224.  Bouv.   Inst.,  Broom's  Com.,   Broom's 
'  Duncan   v.   Luntliy,    2   McN.     &    Com.   on   Common    Law,    Burge     on 

Gord.   39,  Ang.  &  Ames,  on  Corp.,  ^§  Suretyship,  Chitty  on  Cont.,  Chitty'a 

582-5.  PL,     Cowen's    Tr.    (Kingsley's     ed.), 

^  Id. ;  Pollock  V.  National  Bank,  7  Daniell's    Ch.    Prac,  Drewry  on  Inj., 

N.  y.  274.  Edw.    on   Bills,  Estee's    PL,   Fry    on 

^  Pollock  V.  National  Bank,  7  N.  Y.  Specific  Pert'.,  Qreenl.  Ev.,  Hilliard  on 

274.  Torts,   Hilliard   on    Rem.    for    Torts 

^  Ashby  V.  Blackwell,  Amb.  503,   2  Kent's  Com.,  Kerr  on  Injunc,  Kerr  on 

Eden,  299,  Ang.  &  Ames,  on  Corp.,  §§  Receivers,  Pars,  on  Cont.,  Parsons  on 

582-5.  Marine  Ins.,  Parsons  on  Part.,  Redf. 

*  Kenny  v.  First  National  Bank,  50  on  Wills,  1  Conw.  Rob.  Prac,  2  id.,  4 
Barb.  112  ;  Burrill  v.  Watertown,  etc.,  id.,  5  id.,  6  id.,  Roper  on  Leg.,  Smith 
51  Barb.  105,  45  111.  376.  on  Cont.,  Smith's  Man.  C.  L.,  Smith's 

'  Id. ,  Rogers  v.  Langford,  1  Cromp.  Man.  Eq.,  Steph  Com.,  Story's  Eq.  Jur., 

&  Mees.  637.  Story  on  Sales,  Taylor's   Ev. .  Tidd'a 

*>  Esdaile  v.  La  Name,  1  Younge  &  Prac,  Wat.  Eden,  on  Inj.,  Wait's  Law 

Coll.  Exch.  Eq.  394.  and  Prac,  Willard's  Eq.  Jur. 

*  Upon  the  subject,  generally,  see  '"  See  the  cases  cited  by  Mr.  Moak 
May  on  Fraudulent  Conveyances,  in  the  somewhat  extended  note  to 
Bump  on  Fraudulent  Conveyances,  Sprague  v.  Duel,  Clarke's  Chy.,  97, 
Kerr  on  Frauds  and  Mistake,  Adams's  marg.p.;  also  Mr.  Moak's  note  to  Tur- 
Eq.,  Addison  on  Cont.,  Addisci  on  ner  v.  Collins,  2  Eng.  Rep.  304;  see. 
Torts,  Benjamin  on  Sales,  Bl.   C.;:^.,  also,  Smith's  elaborate  note  to  .Sc)M<2m  v. 


336  COMPLAINT  IN  PARTICULAR  CASES.       [CH.  IV  A. 

In  judging,  however,  of  the  validity  of  transactions  between 
persons  standing  in  a  confidential  relation  to  each  other,  the 
materia]  point  to  be  considered  is,  whether  the  person  conferring 
a  benefit  on  the  other  had  competent  and  independent  advice.  The 
age  or  capacity  of  the  person  conferring  the  benefit,  and  the 
nature  of  the  benefit,  are  of  but  little  importance  in  such  cases ; 
they  are  important  only  where  no  such  confidential  relation  exists.* 
Where  one  stands  in  a  fiduciary  relation  to  another  with  whom 
he  is  dealing,  it  is  his  duty  to  communicate  all  material  informa- 
tion in  his  possession  affecting  the  value  of  the  property."  In  an 
action  for  fraud  the  fraudulent  representation  must  be  the  cause 
of  the  damages.  Where  the  defendant's  attorney  falsely  stated  to 
the  plaintiff''s  attorney  that  he  had  authority  from  the  defendant 
to  consent  that  he  should  not  be  charged  in  execution  until  the 
next  term,  and  gave  a  consent  in  writing  to  that  effect,  which 
omitted  to  state  that  the  proceedings  were  stayed  at  the  request  of 
the  defendant,  as  required  by  a  rule  of  the  court,  and  the  plaintiff''s 
attorney  accordingly  so  forbore  to  charge  defendant,  but  when 
arrested  he  was  discharged  upon  the  ground  that  the  consent  was 
defective.  Held,  the  damages  resulted  from  such  defect,  and  not 
from  the  false  representations."  A  complaint  should  allege  that 
the  plaintiff",  relying  upon  the  false  representations,  was  thereby 
induced  to  part  with  his  property  or  enter  into  the  contract."  It 
should  also  allege  that  the  defendant  made  the  representations 
with  intent  to  induce  the  plaintiff  to  do  the  act  complained  of."* 
Where  one,  to  induce  another  to  sell  his  hops,  falsely  represented 
he  had  purchased  a  neighbor's  hops,  and  the  seller,  relying  upon 
the  same  and  his  neighbor's  prudence  and  judgment,  entered  into 
an  agreement  to  sell  his  own.     Held,  such  fraud   authorized  a 

Kencan,  Lloyd  &  Gould.Temp.  Sugden,  Cases,  742, 2  Mason,  378,  39  How.  Prac. 

74,  11  Eng."  Cliy.    Rep.    Banks's  ed. ;  193. 

Mr.  Dunlop's  note  io  Dunn  v.  Galcvdft,  ^  Rhodes  v.  Bate,  L.  R.,  1  Chy.  App. 

2   Sim.   &  Stu.  56,  1  Eng.  Chy.  Rep.  252. 

Banks's  ed.,8  House  Lords  Cases,  481,  ^  Tate  v.   Williamson,  L.  R.,  2  Cky. 

5  Russell,  11,  note,  Talbot's  Rep.  116,  App.  55. 

5  House  Lords  Cases,  627, 1  Cox.  Chy.,  ^  Ue^oitt  v.  Melton,l  Cromp.,  Mees.  & 

112,  L.  R.  10  Eq.  405,  40  How.  Prac.  Rose.  232. 

353,  10  House  of  Lords   Cases,  27,  5  *  Branson  v.  Wimnn,  8   N.  Y.   182 ; 

Price,  42, 1  Russ.  &  Mylne,  539  note,  4  Lnidlnw  v.  Organ,  2  Wheat.  178,  195  ; 

Russ.  507,  note,  2  Eden,  194,  Jac.  Chy.  Elioell  v.   Chamberlain,  4  Bosw.  321, 

421,  MacNaghten's  Select   Cases,   26,  31  N.  Y.  612. 

West's  Rep.  90,  note,  3  House  of  Lords  ^  Mabey  v.  Adams,  3  Bosw.  346 


en.  IV  A.]       COMPLAINT  IS  PAin-ICULAK  CASES.  337 

reBcissionof  the  contract."  It  has  heen  laid  down  by  a  careful 
Wter  upon  the  authority  of  several  English  cases,  that  it  is  not 
Tfraud  for  one  to  represent  he  is  purchasing  for  another  as  his 
:.trwhen  he  is,  in  fact,  purchasing  for  himself  but  we  thmk 
he  d;ctrine  should  be  quahfled  by  the  rule  that  it  should  first  be 
found  as  a  fact  that  such  false  representation  did  not  in  any 
way  operate  to  induce  the  party  to  enter  into  the  contract  and 
the  leLed  author  substantially  so  quahfies  the  rule  elsewh  re 
It  is  sufficient  that  the  plaintiff  is  injured  by  the  fraud,  and  t  is 
not  necessary  that  the  defendant  should  derive  any  advantage 

""sotraction  lies  for  fraudulent  representations  made  to  one 
who  has  agreed  to  purchase  plaintiff's  property,  if  such  repres^n- 
tations  induce  such  purchaser  to  refuse  to  perform  the  contract 
no  ^standing  it  was  void  by  the  statute  of  frauds  and  could 
not  be  enforced';-  otherwise  where  the  person  to  -^o-f «  -P- 
sentation  is  made  has  no  contract  with  the  plamtift  but  in  con 
Iquence  thereof,  refuses  to  deal  with  him.'    It  is  a  fraud  for  one 
kelTto  represent  he  has  been  offered  a  certain  price  for  prop- 
erty ff  the  purchaser,  relying  thereon,  is  induced  to  purchase 
A  party  is  liable  for  fraud  although  he  expressly  refuse  to  war- 
rant,' and  so,  notwithstanding  the  contract  was  reduced  to  writing^ 

It' one  purchase  property  to  be  manufactured  for  him  and  the 
manufaeturer  dehver  it  with  a  patent  <!«*-'', -'"f  7::,'!^;^'' 
worthless,  he  is  not  guilty  of  fraud  in  not  pomtmg  it  out  other- 
wise, where  a  landlord  rented  his  house,  knowing  tha  a  cause 
existed,  not  apparent  on  examination,  which  rendered  it  unfat 

S,nTl  Kay.  7  HoLa  of  Lords  C.Bes.    ^"5^1°°/ "  5t-««.  5    Wend.    385  ; 

'^^Ke„  o.  Frauds  (1  E„g.  ed.,,.97;  'IXi/efpe'n^'l.te.'"^  "'""' ^■ 
i?„Ho:«    V.    (?»»%'•,  ^  o^>'Tr°,«  S™       ?-^™f;  Y  "rfri«,  6  Hill,  533,  but  see 

afflrmed,lRuss.&Mylne83;W»<.ri)e  <.„f™'V^™"3' Barb.  310. 

V.  maau.  1  Coll.  Ch.  303  ^vluinTNol  etc..  30  N.  Y.  86-7, 

>3Pars.onCou.354,notem(5tlied.).      ^7"°»,j3  ci,e"d,  Moak's  Notes  to 

Phillips  V.  Duke  of  B»t»,  1  Vern.  33/,  and  see  cases         ^  ^„,,^  ^„4 

and  cases  cited  in  Eathby's  Notes;  1  Clarke  s  un»~o.         »j  J;  j^f 

Eq%,a,es   Abr.  18,  nl.   10;    to«  V.  *f  »^f  T;  i'""^™,:  19  N.  Y.  405.     ^ 
Clmtry,nan.  30  N.  Y.655;   Smdh  v.        „^f£'J:,1ili:e.i=>^.Y.-2iT -.Do- 

^^^Lfr^rld^^t  (?Sg'fd:,  «  ^S««,  S  Barn.  .  Cress.  633.  10 

'  WhUe  V.  MurUt.  7  N.  Y.  353 ;  Hub-  ^ng.  t- L  Tliomas.  1  Hurl.  &  Colt. 

im-d  V.  Bnags.  31  id.  539;  Alien  v.  j^;  f^^f  ^toAJi*  42  N.  Y.  351. 


43 


338  COMPLAINT  iisr  paetictjlae  cases.      ch.  IV  a. 

for  occupation  and  let  it  without  informing  the  tenant  thereof.' 
But  the  landlord  would  not  be  liable  if  the  house  were  merely  in 
a  ruinous  or  unsafe  condition,  for  that  might  be  discovered  by  the 
tenant  by  a  reasonable  examination."  A  party  to  an  arbitration 
cannot  maintain  an  action  against  his  adversary  for  making  a 
false  representation  to  the  arbitrator  whereby  he  awarded  to  the 
plaintiff  a  less  sum  than  he  would  otherwise  have  done.'  The 
remedy  is  to  apply  to  the  court  to  set  it  aside/  or  by  an  equitable 
suit  to  be  relieved  from  the  award  on  the  ground  of  the  fraud.' 
If,  however,  the  cause  of  action  be  not  grounded  upon  the  testi- 
mony or  proceedings  in  court,  but  upon  a  proceeding  out  of 
court,  the  action  lies ;  as  where  one  incites  another  to  commit 
perjury  or  to  bring  a  false  charge  or  accusation.'  Constructive 
notice,  as  by  an  agent,  of  a  fact,  is  not,  it  seems,  sufficient  to 
charge  a  party,  without  actual  knowledge  thereof,  in  order  to  im- 
pute fraud.'  When  a  sale  is  set  aside  on  account  of  the  inadequacy 
of  the  consideration,  it  is  upon  the  principle  of  redemption,  and 
the  conveyance  will  stand  as  a  security  for  the  principal  and  interest 
and  even  costs." 

Fraud  will  not  be  found  on  any  but  the  strongest  evidence  after 
a  great  lapse  of  time,*  except  in  cases  of  sales  by  revisioners  and 
other  equitable  cases.'"  A  constable  who  has  levied  upon  prop- 
erty by  virtue  of  several  executions  may  recover  upon  an  indem- 
nity given  by  one  of  the  plaintiffs  therein,  although  he  di  1  not 
disclose  the  fact  of  levying  upon  the  others." 

It  is  provided  by  statute,  in  New  York,'"  that  any  executor, 
administrator,  receiver,  assignee,  or  other  trustee  of  an  estate,  or 

'  Wallace  v.  Lent,  29  How.  289.  *  Com.  Dig.  Action  upon  the  case  A. 

"^  Keates  v.  Earl  of  Cadogan,  10  C.B.  Cox  v.  Smith,  1  Lev.  119  ;  Fitzjohn  v. 

591, 70  ED<r.  C.  L.  Rep.,  S.  C.,2  Eng.  Law  McKinder,  9  C.  B.  N.  S.  505,  516. 

and  Eq.  318.  '  Wilde  v.  Oihson,  1  House  of  Lords 

3  Blagrave  v.  2he  Bristol,  etc.,  \  Hurl.  Cases,  605  ;  but,  if  tlie  agent,  having 

&  Norm.  309,  381 ;  Revis  v.  Smith,  18  the  information,  himself  make  the  con- 

C.  B.  126,  86  Eng.  C.  L.  ;  Fitzjohn  v.  tract,  see  28  N.  Y.  389,  31  id.  611,  36 

McKinder,  9  C.  B.  N.  S.  505,  99  Eng.  id.  84 ;  40  Barb.  256. 

C.  L.  *  Perkins's  note  to  Edwards  v.  Burt, 

*  Blagrave  v.  Tlie  Bristol,  etc.,  1  Hurl.  2  De  Gex,  MacX.  &  Gord.  65,  Am.  ed. 

&  Norm.  883,  Pollock,  C.  B.  ;  Barber  '  Boicen  v.  Evans,  2  House  of  Lords 

V.  Ledter,  7  C.  B.  N.  S.  187, 97  Eng.  C.  L.  Cases,  257. 

»  Clark  V.  Underirood,  17  Barb.  202  ;  '»  Edwards  v.  Burt,  2  De  Gex,  MacN. 

5toiev.  PAffimn?  i?a7i^,  33N.  Y.9,  24-8;  &   Gordon,  55,  and  Perkins's  note  to 

but  see,  in  order  to  properly  under-  Little,  Brown  &  Co.'s  ed. 

stand  the  case,  the  grounds  on  which  "  Berri/v.  nemmingicriy,oQ>  Barb.  70 

the  judgment  went,  p.  30.  '-  Laws  1858,  p.  503,  4  Edm.  St.  483. 


OH.  IV  A.]       COMPLAINT  IN  PAKTICULAR   CASES.  339 

the  property  and  effects  of  an  insolvent  estate,  corporation,  asso- 
ciation, partnership,  or  individual,  may,  for  the  benefit  of  creditors 
or  others  interested  in  the  estate  or  property  so  held  in  trust, 
disaffirm,  treat  as  void,  and  resist  all  acts  done,  transfers  and  agree- 
ments made,  in  fraud  of  the  rights  of  any  creditor,  including 
themselves  and  others  interested  in  any  estate  or  property,  held 
by  or  of  right  belonging  to  any  such  trustee  or  estate.  The 
second  section  provides  for  the  liability  of  the  other  party  to  the 
fraud  and  the  bringing  of  the  action.  The  act  has  received  a 
construction  in  several  cases,'  but  as  a  receiver  always  rep- 
resented the  creditor  as  well  as  the  debtor''  its  probable  effect  was 
only  to  remove  a  doubt  as  to  whether  such  actions  could  be  main- 
tained, independent  of  a  statutory  provision  therefor.  In  an  action 
to  recover  damages  for  fraud  it  is  not  necessary  to  rescind.^  Money 
paid  on  an  award  procured  by  fraud  and  imposition  by  the  person 
in  whose  favor  it  is  made,  may  be  recovered  back.* 

Frauds,  statute  of. — The  complaint  need  not  allege  that  a 
contract  which  would  be  otherwise  void  by  the  statute  of  frauds 
is  in  writing.*  One  party  to  the  contract  cannot  act  as  the  agent 
for  the  other  to  sign  his  name,  even  though  the  assumed  agent 
1)6  the  broker  making  the  sale." 

Gamiug.  —  In  an  action  to  recover  money  lost  at  gaming,  the 
allegations  in  the  complaint  must  conform  to  the  requirements  of 
the  statute,^  and  show  that  the  plaintift",  within  three  montlis,  to 
wit,  on  or  about  a  day  named,  by  playing  at  a  certain  game 
(naming  it),  or  by  betting  on  the  sides  or  hands  of  certain  per- 
sons who  played  a  certain  game  [naming  it),  lost  at  one  time  and 
sitting,  and  the  defendant  won  of  the  plaintiff,  the  sum  of  $25 
and  upward,  to  wit,  the  sum  of  {naming  it)  and  then  and  there 
paid  and  delivered  the  same  to  the  defendant,  whereby  an  action 
accrued  to  the  plaintiff  to  recover  said  sum  with  interest,  according 

>  Ofigood  V.  Lai/tin,  3  Keyes,  521,  Seymour  v.  Wilson,  14  N,  Y.  567,  15 

87    How.    63 ;     Sharp  v.  Freeman,  2  How.  355. 

Lans.  171 ;    Tuckerman  v.  Brown,  11  ^  j^iy  v_  Mumford,  47  Barb.  629. 

Abb.   395  ;    Tuckerman  v.   Broim,  23  ^  State  v.  Phcenix  Bank,  33  N.  Y.  9  ; 

How.  109,  33  N.  Y.  297.  see,  however,  Blar/rave  v.  Bristol,  etc., 

2  Oillett  V.  Moody,  3  N.  Y.  479 ;  For-  1  Hurl.  &  Norm.  369. 

ter  V.  Williams,  9  id.  142  ;  Talmaqe  v.  ^  Ante,  267,  mnrg.  p. 

Pell,  7  id.   328 ;  Gillett  v.  Fhilips,  13  «  Sherman  v.  Brandt,  L.  R.,  6  Q.  B. 

id.   114;   Snnary   v.  Dubois,  3   Sandf.  721. 

Ch.  407  :    nn7:ion  v.  Bishop,  3  Wend.  ''  1  R.  S.  662.  ^  14;  1  Edm.  Stat.  (il5 
l:j ;  Pardo  v.  Osgood,  2  Abb.  N.  S.  369  ; 


340  COMPLAINT   IjST   PARTICULAE   CASES.       [CH.  IV  A. 

to  tlie  provisions  of  the  statute  against  betting  and  gaming.' 
And  separate  actions  may  be  brought  for  money  lost  on  different 
occasions.* 

The  ninth  section  of  the  statute '  provides  for  money  lost  upon 
a  bet  upon  a  contingent  event,*  and  in  action  to  recover  money 
so  lost,  the  allegations  in  the  complaint  should  conform  to  that 
section.^  The  complaint  should  state  thQ  facts  which  show  under 
what  section  it  is  brought,  and  should  specify  the  amount  lost  at 
each  sitting,  and  the  times  of  payment.'  It  has  been  held  that 
the  master  of  a  vessel,  who  suffered  a  notorious  gambler  —  a  pas- 
senger on  his  vessel — to  decoy  a  boy  of  eighteen,  also  a  passen- 
ger, into  gambling  and  losing  money,  was  liable,  in  admiralty, 
at  the  suit  of  a  parent  owning  the  money,  for  the  amount  lost.'' 
However  good  morals  there  may  be  in  the  case,  it  would  probably 
be  hazardous,  unless  provided  for  by  statute,  as  in  New  York,'  to 
rely  upon  it  as  an  authority  that  a  party  similarly  situated  would 
be  liable  in  an  action  at  law.  An  employer  may,  however,  recover 
of  one  who  wins  his  money  from  his  clerk.' 

Gas  company."  —  If  a  gas  company  send  its  servant  to  the 
house  of  one  of  its  customers  to  ascertain  the  whereabouts  of  a 
leak  and  stop  it,  it  is  liable  for  his  negligence  such  as  lighting  a 
match  and  igniting  the  gas  and  thereby  causing  an  explosion." 
The  company  is  not  liable,  however,  without  proof  of  negligence 
upon  its  part.  It  must  be  notified  of  a  leak,  unless  it  was  caused 
by  its  negligence."  A  gas  company  is  not  bound  to  furnish  a 
separate  meter  for  each  floor  of  a  house,  unless  the  owner  or  occu- 
pants put  in  separate  or  independent  service  pipes  to  connect 
with  the  meter.''     If  a  gas  company  negligently  put  up  a  defect- 

'  Stannard  v.  Eytinge,  5  Rob.  90,  33  Abb.  131 ;  Arieta  v.  Morrissey,  1  Abb. 

How.  263,  8  Abb.  N.  S.  42 ;  Longworthy  N.  S.  447. 
V.  Broomley,  29  How.  92.  ^Arieta  v.  Morrissey,  1  Abb.  N.  S.  439. 

2  Betts  V.  Hillman,  15  Abb.  184.  •>  Smith  v.  Wilson,  31  How.  272. 

3  1  R.  S.  662,  §  9,  1  Edm.  Stat.  614.  « Laws  1851,  p.  945,  S  7, 4  Edm.  St.  42 
■•  Lonr/tcorthy  v.  Bromley,  29  How.        »  Caussidere  v.  Beers,  2  Keyes,  198. 

92  ;  Phillips  v.  Sture,  1  Code  Rep.  58.  '"  For  the  law  of  negligence  by  gas 

The  latter  case,  however,  so  far  as  it  companies,  see  Shearman  &  Redfield's 

holds  that  the  losing  party  may  main-  Negligence,  tit.  Gas  Companies. 

tain  assumpsit, clearly  is  not  good  law.  "  Lannen  v.  Albany  Gas  Light  Co., 

Mornn  v.  Morrissey,  28  How.  100, 18  46  Barb.  264,  44  N.  Y.  459. 

Abb.  131.  '^  Holley  v.  Boston  Gas  Light  Co.,  8 

^  Longworthy  v.  Bromley,  29  How.  Gray,  123. 

92 ;  Moran  v.  Morrissey,  28  id.  100,  18  '^  Ferguson  v.  The  Metropolitan,  etc., 

37  How.  189. 


CH.  IV  A.]       COMPLAINT   IN   PARTICULAR  OASES.  341 

ive  pipe  it  is  liable  to  one  who  goes  into  tlie  room  with  a  lighted 
candle  to  ascertain  the  cause.* 

Good-will  of  business."  —  One  who  sells  the  good-will  of  a 
business  may,  in  the  absence  of  a  covenant  not  to  do  so,  engage  in 
the  same  business  provided  that  he  does  not  do  any  act  to  mislead 
customers  into  the  belief  either  that  he  is  carrying  on  business  as 
the  successor  of  the  old  firm,  or  that  when  dealing  with  him  they 
are  deahng  with  such  successor  f  but  he  must  not  solicit  the  cus- 
tomers of  the  old  business  to  cease  dealing  with  the  purchaser,  or  to 
give  their  custom  to  himself.*  If,  on  a  dissolution,  partners  choose 
to  divide  the  assets,  each  of  them  may,  in  the  absence  of  express 
agreement,  carry  on  the  business  in  the  name  of  the  old  firm. 
But  if  one  of  the  partners  by  arrangement  takes  the  whole  con- 
cern at  the  valuation,  the  name  is  an  item  in  the  valuation,  and 
the  retiring  partner  has  no  right  to  use  it. "  The  good- will  of  a 
trade  is,  however,  "  property,"  and  may  be  sold  and  transferred 
in  the  same  manner  as  other  property.* 

Goods  sold.' — Where  A  sells  goods  to  B,  who  pays  a  certain  sum 
of  money  as  earnest,  and  the  goods  are  packed  in  cloths  furnished 
by  B,  and,  till  B  shall  send  for  them,  deposited  in  a  building  belong- 
ing to  A,  who  declares  they  shaU  not  be  carried  away  until  he  is 
paid;  this  is  not  such  a  delivery  to  B  as  will  sustain  an  action  for 
goods  sold  and  delivered  ;*  and  so  where  goods  sold  for  ready  money 
were  packed  in  boxes  of  the  vendee,  for  him  and  in  his  presence, 

^  Burrows  y.  March,  h.R.,  5  Exc.QQ,  see  Kerr  on  Inj.  (1st  Eng.  ed.)  167, 

AflF'd,  1  Eng.  R.  203.  168;  Bininger  v.  Clarke,  10  Abb.  N.  S. 

^  Upon  the    subject,  generally,  see  364. 

Adams'sEq.,Boav.  Inst.  (3d  ed.),^  1533,  ^Potter  v.  Commissioners,  10   Exch. 

Bouv.    Law    Diet.,    tit.    Good-will,    3  147,  and  cases  cited,  note  p.  159  (Jolin- 

Broom's   Com.  585,  Chitty   on    Cont.,  son's  ed.) ;  Bininger  v.  Clark,  10  Abb. 

Daniell's  Chy.  Prac,  1  Estee's  PI.  410,  N.  S.  364  ;  Smale  v.  Graves,  3  De  Gex  & 

Fry  on  Specif.  Perf.  63,  marg.  p.,  Hil-  Sm.  706. 

Hard    on    Inj.,   Comstock's  note  to  3  ■"  See  ante,  marg.  p.  24:9.     Upon  tbe 

Kent's  Com.  64,  marg.  p.,  Kerr  on  Inj.  subject,  generally,    see    Cliitty's    PI., 

167,   514    (1st   Am.   ed.).    Parsons   on  Cowen's   Tr.  (Kingsley's  ed.),   Wait's 

Cont.,    Parsons    on    Part..    4    Conw.  Law  and  Pr.,  Benjamin  on  Sales,  Story 

Rob.  Prac,  Smith's  Man.  C.  L.  316  (1st  on  Sales,  Chitty  on  Contracts,  Estee's 

Am.  ed.),  Smith's  Real  &  Pers.  Prop.,  PL,  Kent's  Com.,  Parsons  on  Cont.,  3 

Storv  on  Part.,  §§  99-100,  311-313,  3  Conw.  Rob.  Pr.,4id.,  Selwyn's  N.   P.,, 

Williams    on    Exrs.     1498    (note    q.),  Steph.    Com.,     Taylor's    Ev.,     Tidd's 

1  Wail's  Law  &  Prac.  916,  3  id.  Prac,  Williams  on  Pers.  Prop. 

»  White  V.  Jones,  1  Rob.  331,  1  Abb.  ^  Qoodall  v    Skelton,  3  H.   Bl.  316. 

N.  S.  338  ;  Crutwell  v.  Lye,  17  Ve.s.  346.  See  the  numerous  cases  as  to  what  is  a 

*  LiJj^irchere  v.  Dawson,  1  Eng.  R.  sufficient  delivery  cited  in  note  to  the 

711.  4th  ed.  of  ihese  reports. 

'  Banks  v.  Oihson,  34  Beav.  56G,  and 


342  coMPLAiisrT  in  particulae  cases,     [en.  IVA. 

but  remained  on  the  premises  of  the  vendor.'  P>nt,  on  the  sale 
of  specilic  goods,  at  an  agreed  price,  the  property  in  the  goods 
vests  in  the  purchaser,''  and  he  is  liable  for  goods  sold  (without 
adding  "  and  delivered  ").'  Unless  there  be  a  stipulation  for  credit, 
the  vendor  has,  until  deliver}^  of  the  goods,  a  lien  upon  them  for 
the  purchase  price  and  a  right  to  retain  them  until  paid  for.*  After 
an  offer  to  perform  and  demand  of  payment  the  vendor  may,  on 
notice  of  his  intention  so  to  do,  resell  the  goods  at  the  best 
price  he  can  obtain,  and,  after  deducting  the  expenses,'  charge  the 
vendee  with  the  deficiency.'  It  is  not  necessary,  however,  to  give 
the  vendor  notice  of  the  time  and  place  of  sale.'  The  vendor 
must  sell  in  the  usual  manner,  as  at  auction  or  through  the  agency 
of  a  broker,  if  that  be  the  custom  of  the  place.*  The  vendee  who 
has  received  and  paid  for  goods  may,  if  they  do  not  answer  tlie  con- 
tract, after  inspection,  within  a  reasonable  time,  offer  to  return 
the  goods,  and  if  the  vendor  refuse  to  receive  them,  sell  them  in 
the  same  manner  and  charge  the  vendor  with  the  difference 
between  the  amount  paid  and  the  price  realized  on  the  sale.* 

The  vendor,  however,  cannot,  without  offer  to  perform  and 
notice  to  the  vendee  of  his  intention  to  re-sell  in  case  of  his 
failure  to  do  so,  re-sell  even  after  failure  by  the  vendee.  If  he 
re  sell  without  such  notice,  he  rescinds  the  contract,  and  is  liable 
to  repay  the  amount  advanced,  although  not  liable  for  damages," 
but  if  the  vendee,  on  request,  refuse  to  jperform  the  contract,  he 
cannot  recover  back  the  amount  advanced,  although  the  vendor 
afterward  re-sell  for  more  than  the  contract  price,"  for  he  is  the 
party  who  first  rescinds.  On  the  sale  of  a  specified  quantity  of 
grain  out  of  a  larger  quantity,  the  title  thereto  passes,  so  that  the 

'  Boulter  v.  Arnott,  1  Cromp.  &  Mees.        '  Lewis  v.    Qreider,  49  Barb.   606 

333.  Pollen    v.    LcRoy,   30  N.    Y.  557-8 

*  2  N.  T.  260,  24  id.  595,  21  Barb.  Bogart  v.  0' Regan,  i  E.  D.  Smith,  590 

199,  5  Denio,  379,  8  N.  Y.  290,  25  id.  Crooks  v.  Moore,   1  Sandf.  297  ;  Mess- 

520,    9    Barb.    511,  25  N.  Y.  278,    31  more  v.  Shot,  etc.,  40  N.  Y.  422. 
How.  10.  <*  Crooks  v.  Moore,  1  Sandf.  297. 

3  Pollen  V.  LeR')7/,  30  N.  Y.  556.  »  Messmore  v.  Shot,  etc.,  40  N.  Y. 

4  2  Bl.  Com.   448,  4  Barn.   &  Cress.  422. 

481, 3  Pars.  Cont.  (5tli  ed.)  256-7 ;  Story  'o  Fancher  v.  Goodman,  29  Barb.  315  ; 

on  Sales,  ^  226.  McEachron  v.  Randies,  34  id.  301  ;   Ut- 

^  McEachron  v.  Randies,  34  Barb,  ter  v.  Stewart,  30  id.  20 ;  Main  v.  King, 

305.  8  id.  535 ;  Story  on  Sales,  ^  226. 

8  Messmore  v.  Nein  York,  etc.,  40  N.  "  Monroe  v.  Reynolds,  47  Barb.  574, 

Y.  422 ;  LeiDis  v.  Greider,  -19  Barb.  606  ;  579,  580 ;  Simon  v.  Kaliske,  6  Abb.  N 

Pollen  V.  LeRoy,  30  N.  Y.  556  ;  Dustan  S.  225. 
V.  Mc Andrew,  10  Bosw.  135. 


CH.  IV  A.]       COMPLAINT   IN   PARTICULAR   CASES.  843 

seller  may  maintain  an  action  for  goods  sold,'  provided  it  is  found 
that  the  parties  intended  that  the  property  should  be  at  the  buyer's 
risk,  or  that  the  title  should  pass." 

Where  one  sells  a  cargo  of  wheat  described  in  the  bought  and 
sold  note  as  on  board  a  certain  ship,  as  per  bill  of  lading,  held, 
that  the  buyer  was  not  necessarily  entitled  to  rescind  on  its 
turning  out  that  all  the  wheat  was  not  shipped  before  the  bill  of 
lading  was  given." 

Guaranty/ —  Where  a  tenant  leased  premises  at  a  yearly  rent 
of  $1,100,  payable  quarterly,  and  the  defendant  covenanted  that, 
in  case  of  default  by  the  lessee  in  the  payment  of  the  rent,  he 
would  "  pay  $yOO,  or  any  arrears  thereof  that  remain  due,  and 
also  all  damages  "  that  might  "  arise  in  consequence  of  the  non- 
performance of  the  lessee's  covenants  or  either  of  them,"  and  the 
tenant  paid  three  quarters'  rent,  leaving  the  fourth  not  paid,  held, 
the  surety  was  liable  for  the  whole  $275.^ 

Although  the  language  of  a  guaranty  is  equivocal  so  that  it  does 
not  show  whether  it  was  intended  to  apply  to  future  debts  or  only 
to  debts  already  due,  if  it  be  apparent  from  the  transactions  between 
the  parties  and  the  entire  instrument  that  it  was  intended  to 
cover  future  dealings  the  guarantor  will  be  liable  thereon  for 
such.°  On  a  guaranty  of  payment  for  "  chamber  suits "  the 
guarantor  is  not  liable  for  parts  of  chamber  suits.''  A  guaranty 
will  be  held  to  contemplate  a  single  sale  unless  it  be  evidently 
intended  to  operate  as  a  continuing  liability,"  but  a  guaranty 
may  be  held  continuing  if  from  the  transaction  and  its  language 
such  be  the  evident  intention  of  the  parties.*  Upon  a  guaranty 
of  "  collection  "  of  an  obligation  the  guarantor  must  exhaust  his 

'  Kimberly  v.  Patcldn,  19  N.  Y.  330  ;  Pleadings,  Cowen'sTr.(Kingsley'sed.), 

Russell  V.  Carrington,  43  id.  118,  122  ;  Estee's    Pleadings,   Kent's    Commen- 

Woodley  v.  Coventry,  2   Hurl.  &  Colt,  taries,   Kerr  on   Frauds,   Parsons   on 

164  ;  Turley  v.  Bates,  id.  200.  Contracts,  1  Conw.  Rob.  Prac,  2  id.,  3 

•^  Rodee  v.  Wade,  47  Barb.  53,  63.  id.,  4  id.,  5  id.  ;  Selwyn's  N.  P.,  Smitli'a 

^  Oattorno  v.  Adams,  12  C.  B.  N.  S.  Manual  of   Common  Law,   Smith  on 

560,  104  Eng.  C.  L.  Rep.  Contracts,    Stephen's     Commentaries, 

*  Upon   the   subject,  generally,  see  Story's  Equity  Jurisprudence,  Taylor'a 

Burge  on  Suretyship,  Pitman  on  Prin-  Evidence. 

cipal  and  Surety,  Theobald's  Principal  ^  Lanier  v.  Wyman,  5  Rob.  147. 

and    Surety,   Throop    on    Statute    of  ®  Brown    v.    Baefielor,    1    Hurl.    & 

Frauds,  Browne  on  Statute  of  Frauds,  Norm.  255 ;   Walrath  v.  Thompson,  4 

Adams's  Equity,  Addison  on  Contracts,  Hill,  201. 

Bouv.   Inst.,   Broom's    Commentaries,  ''  Hayden  v.  Cram,  1  Lans.  181. 

Broom's  Commentaries  on  Common  ^  Coles  v.  Park,  L.  R.,  5  C.  P.  65,  70. 
Law,  Chitty    on    Contracts,    Chitty's 


344  COMPLAINT  IN   PAKTICULAR  CASES.       [CH.  IV  A. 

remedy  within  a  reasonable  time  and  with  due  diligence  against 
the  principal  debtor/ 

Though  the  principal  debtor  be  insolvent  he  must  be  prosecuted 
within  a  reasonable  time  or  the  guarantor  is  discharged,"  even 
though  he  reside  out  of  the  State,  if  he  so  resided  when  the 
guarantee  was  given,*  otherwise  if  he  abscond  after  the  guaranty- 
is  made/  Unreasonable  delay  discharges  the  guarantor/  A 
guaranty  of  "  payment  and  collection  "  is  one  of  collection  merely, 
and  the  creditor  must  exhaust  his  remedy,'  so  on  a  guaranty  of 
collection  of  a  bond  and  mortgage ;'  otherwise  as  to  a  guaranty 
of  any  "  deficiency  "  on  a  foreclosure  of  a  mortgage.*  A  guaranty 
that  the  maker  of  a  note  is  good  is  one  of  collection ;'  otherwise 
that  a  note  was  good  and  would  be  paid  at  maturity.'"  A  waiver 
of  the  foreclosure  of  a  mortgage  does  not  waive  a  prosecution 
upon  the  bond."  The  omission  to  file  a  transcript  of  a  justice's 
judgment  will  not  discharge  the  guarantor  unless  the  principal 
debtor  had  real  estate."  The  prosecution  of  the  principal  debtor 
must  be  in  good  faith,  and  with  reasonable  care  and  sMll.^^  A 
guaranty  for  all  moneys  advanced  within  one  year  may  be 
countermanded."  A  guaranty  for  all  goojds  fiirnished  the 
principal  debtor  "  until  I  give  you  notice  to  the  contrary  "  is  not 
a  bare  authority,  but  a  contract,  and  the  executor  of  the  guarantor 
is  liable  for  goods  supplied  after  his  death." 

Highways/'  —  In  order  to  maintain  an  action  for  obstructing 
a  highway,  the  plaintiff  must  suffer   some  substantial  damage 

'  Burt  v.  Horner,  5  Barb.  501 ;  New-  »  Cook   v.   Nathan,  16    Barb.    342 ; 

eU  V.  Fowler,   23    id.    628 ;  Craig  v.  Torry  v.  Badley,  27  id.  195. 

Parkis,  40  N.  Y.  181.     The  case  of  i»  Cardell  v.  McNiel,  21  N.  T.  337, 

Cady  V.  Sheldon,  38  Barb.  103,  was  840. 

expressly  overruled  in  Baker  v.  Plat-  "  Newell  v.  Fowler,  23  Barb.  628. 

ner,  in  the  6th  Dist.,  affirmed  in  Court  '^  Backus  v.  Sliipherd,  11  Wend.  629, 

of  Appeals,  March,  1870.     It  was  also  635. 

disapproved  in  Craig  v.  Parkis,  40  N.  i'  Sawyer  v.  Haskell,  18  How.  Prac. 

T.  181.  282. 

2  Craig  v.  Parkis,  40    N.  T.    181 ;  '^  Offord  v.  Davis,  12  C.  B.  N.    S. 

Hart  V.  Hudson,  6  Duer,  294 ;  Gallagher  748,  104  Eng.  C.  L.  Rep. 

V.  White,  31  Barb.  92.  '^  Bradbmy  v.  Morgan,   1    Hurl.  & 

*  Burt  V.  Horner,  5  Barb.  501 ;  Spies  Colt.  249. 

V.  Oihnore,  1  N.  Y.  324.  '*  Upon  the  subject,  generally,  see 

*  Cook  V.  Nathan,  16  Barb.  342.  Angell  on   Highways,   Thompson    on 

*  Bvrt  V.  Horner,  5  Barb.  501.  Highways,  Washburne  on  Easements, 

*  Baxter  v.  Smack,  17  How.  183.  Washburne  on  Real  Estate,  Addison 
'  Ltice  V.  Hinds,  Clarke's  Chy.  453,  on  Contracts,  title  Ways ;  Addison  on 

ma/rg.  p.  and  Moak's  note ;  Newell  v.     Torts,     Blackstone's      Commentaries, 
Folder,  23  Barb.  628.  Bouv     Inst.,   Broom's  Commentaries, 

*  Goldsmith  v.  Brown,  35  Barb.  484.      title    Way,     Broom's    Commentaries, 


CH.  lYA.]       COMPLAI]!^T  IjS^    PARTICULAE   CASES.  345 

peculiar  tu  hiinsclf,  beyond  tliat  suffered  bj  the  rest  of  the  public 
who  use  it.  Where  the  plaiutitf  proved  no  damage  peculiar  to 
liiniself  bcvond  being  delayed  on  several  occasions  in  passing 
along  it,  and  being  obliged,  in  common  with  every  one  else  who 
attempted  to  use  it,  either  to  pursue  his  journey  by  a  less  direct 
road  or  to  remove  the  obstruction,  tield^  he  could  not  maintain 
the  action/  Nor  does  loss  of  trade,  occasioned  by  a  temporary 
obstruction  of  a  highway  during  the  building  of  a  railway,  ren- 
dering access  to  plaintiff's  hotel  more  difficult,  entitle  him  to 
recover.' 

One  of  the  late  cases  in  New  York  seems  to  hold  that  a  party 
who  is  injured  by  the  obstruction  of  a  highway  may  have  relief 
in  equity,  although  an  action  at  law  could  not  be  sustained.' 

A  temporary  occupation  of  part  of  a  street  or  highway  by 
jfcrsons  engaged  in  building,  or  in  receiving  or  delivering  goods 
from  stores  or  warehouses  or  the  like,  is  allowed,  from  the  neces- 
sity of  the  case,^  but  a  systematic  and  continued  encroachment  of 
a  street,  though  for  the  purpose  of  carrying  on  a  lawful  business, 
is  not.*  When  a  city  is  compelled  to  pay  damages  for  an  injury 
occurring  from  an  unsafe  condition  of  its  streets,  through  the  negli- 

on  Common  Law,  title  Way,   Cook's  stantially  to  the  sam.e  efiect.     Pierce 

Manual    of    Higliways,    Co  wen's    Tr.  v.  Dar-t,   1  Cow.   609 ;    Dougherty    v 

(Kiugsley's    ed.),    Estee's    Pleadings,  Bunting,  1    Sandf.   S.  C.  R.   1  ;   Fart 

Daniell's  Chancery  Practice,  title  Way;  Plain,  etc.,  v.   Smith,  30   N.   Y.    44; 

Fry   on    Specific   Performance,   same  Myers  v.  Malcolm,    6   Hill,  323 ;   Mc- 

title ;  Greenleaf 's  evidence,  title  Way ;  Keon  v.  Lee,  4  Rob.  469  ;  Lansing  v. 

Uilliard's   Remedies    for    Torts,    title  Smith,  ^  Cow.  1A.Q.     The  opinion  of  the 

Ways ;  Hilliard  on  Torts,  Kent's  Com-  chancellor,  in  this  case,  in  the  court 

meutaries  and  title  Way,  Kerr  on  In-  of  errors,  4  Wend.  9,  that  every  one 

junctions,    same    titles;    Parsons    on  who  receives  actual  damage  from  an 

Contracts,  title  Real  Property  ;  2  Conw.  obstruction  may  maintain   an  action, 

Rob.  Prac.  and  title  Way,  4  id.,  same  although  there  may  be  many  others  in 

tides,  6  id.,  same  titles;  Selwyn's   N.  the  same  condition,  is  hardly  supported 

P.,  Smith's  Manual  of  Common  Law,  by  the  authorities,  although  there  ia 

title   Way ;    Stephen's  Commentaries,  much   good   sense   in   it,  and   it  may 

Taylor's    Evidence     and    title    Way,  ultimately  be  held  to  be  good  law  in 

Tidd's  Practice,  title  Way  ;  Williams  that  State.     McKeon  v.  Lee,  4  Rob.  469. 

on    Real    Property,   and   same    title  ;  See  Thompson  on  Highways,  p.  256-57, 

Chitty's  Pleadings  and  title  Way.  and  Liuising  v.  Wiswall,  5  Denio,  213; 

'  Winterhottom  v.  Lord  Derby,  Law.  affirmed,  5  How.  77. 
Rep.,  2  Exch.  316.  ••  People  v.  Cunningham,  1    Denio, 

'^  Pdcket  V.  Met.  Raihoay,  L.  R.,  2  H.  524,  32  Penn.  St.  689  ;  Chicago  v.  Bob. 

L.  175,  187,  5  Best  &  Smith,  156.     The  Uns,  2  Black.  418,  423-4,  distinguish- 

two  last   English   cases   consider,   at  ing, Hilliard y.  Richardson, ZOira.j,S^^, 

^reat  length,  the  question  as  to  what  and    disapproving,    Scammon  v.    Vhi- 

constitutes  special  damages,  and  should  cago,  25  111.  424. 

1  e  carefully  read   before  bringing  an        '"  People  v.    Cunningham,  1    Denio 

jiction  of  this  character.  524. 

^  The  cases  in  Now  York  are  sub- 


346  C03IPLAINT   IX   P.iRTICULAK  CASES.       [CH.  IV  A.. 

gence  of  an  iiiui'.iJuiil,  it  may  recover  such  damages  from  him." 
One  who  digs  a  pit  upon  his  own  land,  substantially  adjoinmg  a 
public  highway,  so  that  those  using  it  with  ordinary  caution  may 
fall  into  it,  is  liable  to  one,  who,  by  such  use  of  it,  sustains  injury 
thereby,*  otherwise,  if  it  be  not  substantially  adjoining  the  public 
highway ;'  or  if  dug  in  rear  of  his  building,  and  one  who  attends 
a  fire  therein  accidently  fall  into  the  pit  and  be  injured.* 

Husband  and  wife." —  An  action  lies  against  a  married  woman 
carrying  on  business  in  her  own  name  for  the  negligence  of  her 
servant.'  When  a  married  woman,  in  the  presence  of  her  hus- 
band, and  by  his  direction,  maliciously  institutes  a  prosecution 
against  another,  she  is  not  personally  liable  therefor,'  otherwise, 
if  the  husband  be  not  present,  though  she  act  by  his  direction,  or 
if  he  be  present,  but  she  do  not  act  under  his  direction.*  In  such 
case,  however,  the  husband  and  wife  must  be  sued  jointly,  and 
judgment  must  go  against  both,  for  the  husband  is  liable  for  the 
wife's  torts,'  and  both,  or  either,  may  be  taken  in  execution,'" 
although  the  wife  could  not  be  held  to  bail  on  mesne  process."  In 
!New  York,  by  statute,  the  husband  is  not  liable  for  the  conver- 
sion of  property  by  the  wife,  if  she  claim  it  as  her  separate  prop- 
erty.- 

'  Chicago  v.  Bobbins,  2  Black.  419.  id.,  5  id.,  6  id..  Roper  on  Leg.,  Sel- 

«  Bar7ies  v.  We?i(l,  9  C.  B.  393, 67  Eng.  wyn's  N.  P.,  Shear,  and  Redf.  on  Neg., 

C.  L.  R. ;  Wriff7it  v.  Saunders,  36  How.  Smith  on   Cont.,    Smith's  Man.   Com. 

136,  not  so  well  reported  ;  3  Keyes,  323.  Law,   Smith's   Man.   of    Eq.,   Smith's 

^  Hardcastle  v.  South,  etc.,  4  Hurl.  &  Real   and   Pers.   Prop.,  Steph.'s  Com., 

Norm.  67.  Story's     Agency,     Story's     Eq.    Jur., 

*  Kohn  V.  Lotett,  44  Ga.  251.  Story's  Eq.  PL,"  Story  on   Sales,  Tay- 

*  Upon  the  subject,  generally,  see  lor's  Ev.,  Tidd's  Prac,  Townsend  on 
post,  title  Married  Woman,  and  the  foi-  Slander,  Van  Santv.  Eq.  Prac,  Wait's 
lowing  works,  titles  Husband  and  Law  and  Prac,  Washb.  on  Real  Prop., 
Wife,  and  Married  Woman ;  Ro])er  on  Williard's  Eq.  Jur.,  Hilliard  on  Real 
Husband  and  Wife,  Bright's  Husband  Est.,  Williams  on  Ex'rs,  Williams's 
and  Wife,  Bishop's  Marriage  and  Di-  Pers.  Prop.,  Williams  on  Real  Prop, 
vorce,  Bishop  on  Married  Women,  Ad-  ®  Gillies  v.  Lent,  2  Abb.  N.  S.  455. 
dison  on  Contracts,  Addison  on  Torts,  '  Gassin  v.  Delany,  38  N.  Y.  178-9,  6 
Barbour's  Ch.  Prac,  Benjamin  on  Sales,  Abb.  N.  S.  1. 

Bl.  Com.,  Bouv.   Inst.,  Broom's  Corn.,  ^  Gassin  v.  Delany,  1  Daly,  224,   38 

Broom's  Cora  on  Common  Law,  Cow-  N.Y.  179;  TFa/76;ierv.  ^^^^,  19Barb.  321. 

en's  .  Tr.    (Kingsley's    ed.),    Daniell's  ^  Drury  v.  Dennis,  Yelv.   106,    and 

Cliv.  Prac,  Cliittv   on  Cont.,  Chittv's  Metcalfe's  note,  106  a.y  il/arsA  v.  PoWcr, 

PI.",  Estee's  PI.  an"d  Prac,  Fry's  Specif.  30  Barb.  506-7. 

Perf.,  Greenl.    Ev.,    Hilliard    on    Inj.,  '"  Id. ;  <So^(P»W7i  v.  >Faffl«,  2  Hilt.  179  ; 

Hilliard  on  Torts,  Hilliard's  Rem.  for  Flanigan\.Tinen,ri'i'BaLTh.f)%l,Z'TS.ow. 

Torts,  Kent's  Com.,  Kerr  on  Inj.,  Kerr  130  ;  Marsh  v.  Potter,  30  Barb.  506-7, 

on  Frauds,  Parsons  on  Cont.,  Parsons  ^'  Schaus  v.  Putxrher,  25  How.  iQZ, 

on  Part.,  Redf.  on  Wills,  Reeve's  Dom.  Metcalfe's  note  to  Yelv.  106  a. 

Kel.,  1  Conw.  Rob.  Prac,  2  id.,  3  id,,  4  ^^  Peak  v.  Lemons,  1  Lans.  295. 


CII.  IV  A.]       COMPLAINT   IN   PAETICULAR   CASES.  347 

If  tlie  wife  many,  pending  a  suit  against  lier,  tlie  husband 
is  not  a  necessary  party ;  judgment  may  go  against  her  only 
when  the  execution  must  conform  to  it/  although  the  husband, 
in  such  case,  may  be  made  a  party  defendant.*  An  action  does 
not  lie  by  the  husband  against  the  father  of  his  wife  for  merely 
harboring  her  or  for  advising  her  to  leave  her  husband,  if  he  do 
so  honestly  upon  information,  from  the  wife,  that  circumstances 
exist  which  justify  her  in  abandoning  him,  although  the  informa- 
tion subsequently  prove  to  be  unfounded.'  Kor  is  a  stranger 
liable  for  lionestly  acting  upon  such  advice.*  If  one,  by  means 
of  false  insinuations  against  the  husband,  influence  the  wife  to 
leave  her  husband,  he  is  liable,^  but  he  must  act  from  improper 
or  unjustifiable  motives.*  A  tradesman  who  sells  goods  to  one 
held  out  by  an  assumed  husband  as  a  wife,  may  recover,  although 
she  be  not  in  fact  sucli.'  And  so  he  may  recover  for  necessaries 
furnished  the  wife,  although  a  suit  for  divorce  be  pending,  unless 
alimony  has  been  allowed.*  If  the  wife  leave  her  husband  with- 
out justifiable  cause,  he  is  not  liable  for  even  necessaries  furnished 
her  °  unless  she  ofiier  to  return  and  he  refuse  to  receive  her.""  He 
is  liable  if  the  wife  leave  him  because  of  his  violence  and  cruelty 
and  from  reasonable  apprehension  for  her  personal  safety,  pro- 
vided he  be  the  offending  party."  So  he  is  liable  in  equity, 
though  not  at  law,  for  money  advanced  to  the  wife  for  and 
applied  to  her  support,  if  he  have  deserted  her.*^ 

In  an  action  against  the  husband  for  money  advanced  to  the 
wife,  the  complaint  must  aver  that  the  money  was  loaned  or 
advanced  to  the  husband  or  to  the  wife,  or  for  her  benefit  at  his 
request,  or  with  his  consent,  or  that  he  subsequently  acquiesced, 

1  Boyley  v.  White,  Croke's  Jac.  323  ;  Bolton  v.  Prentice,  2  Strange,  1314,  and 

Cooper  V.  nanchin,  4  East.  521 ;  Doe  v.  see  Mr.  Nolan's  note  to  3d  ed. 
Butcher,  3  Maule  &  Selw.  557;  Haines        *  Bloicers  v.  Sturtemiit,  4  Denio,  46; 

V.  Corliss,  4  Mass.  660.  Manljy  v.  Scott,  Orl.  Bridg.  229  ;  Hiiiton 

*  Haines  v.  Corliss,  4  Mass.  660.  v.  Hudson,  1  Freem.  349,  and  Smirke'a 
3  Bennett  v.  SmitJi,  31   Barb.   443  ;  note  to  ed  ,  of  1836. 

Campbell  v.  Carter,  6  Abb.  N.  S.  151.  '"  Blowers  v.  Sturtevant,  4  Denio,  46  ; 

*  Barnes  r.  Allen,  1  Keyes.  393.  {Manhy  v.  Scott,  Orl.  Bridg.  339,  so  far 
^  Hermancs  v.  James, \l  Barb.  130,    as  it  holds  otherwise,  is  not  sound  law); 

32  How.  143.  Moore  v.  Moore,  West.  35-6,  and  cases 

®  Schuneman  v.  Palmer,  4  Barb.  835  ;  cited  in  note  ;  S.  C,  1  Atk.  373. 

Hutchinson  v.  Peck,  5  Johns.  196.  ''  Reynolds  v.  Sweetser,  15  Gray,  78 

'  Story  on  Cont.,  §  101.  Bloioers  v.  Sturtevant,  4  Denio,  46. 
«  Johnstone  v.   Allen,    6  Abb.  N.  S.        "  Deare  v.  Soulten,  L.  R.,  9  Eq.  151 

306  ;  Eames  v.  Sweetser,  101  Mass.  78 ;  overruling.  May  v.  Skey,  16  Sim.  588. 


348  COMPLAINT   IN"   PARTICULAE   CASES.       [CH.  IV  A. 

or  tliat  slie  was  the  agent  of  the  husband  in  procm-ing  the  advance, 
or  should  allege  such  facts  as  show  that  an  implied  agency  from 
the  husband  to  the  wife  arise  therefrom.*  The  husband  is  liable 
for  the  costs  of  a  suit  against  him  by  the  wife,  rendered  necessary 
by  his  misconduct."  The  husband  is  liable  for  the  expenses  of 
burying  the  wife  in  a  suitable  manner,  although  she  left  her  hus- 
band without  cause  and  had  lived  separate  from  him  for  years, 
and  notwithstanding  she  be  buried  without  communication  with 
the  husband.^ 

Plaintiff  repaired  the  house  of  a  lunatic  husband,  in  which  his 
family  resided,  he  being  in  an  asylum,  pursuant  to  the  orders  of 
his  wife.  The  I'epairs  were  necessary  for  the  house,  but  after 
paying  for  defendant's  support  in  the  asylum,  the  wife  received 
the  whole  of  his  income  and  had  also  an  allowance  from  friends 
of  the  defendant.  What  she  received  from  both  sources  was 
sufficient  for  all  purposes,  including  the  repairs.  Held,  the 
husband  was  not  liable,  for  the  authority  of  a  wife  to  pledge  her 
husband's  credit  was  no  greater  in  the  case  of  a  lunatic  than  in 
the  ordinary  case  of  husband  and  wife.'  A  druggist  is  liable 
to  the  husband  for  secretly,  day  by  day,  selling  the  wife  large 
quantities  of  laudanum  to  be  used  by  her  as  a  beverage  and 
so  used,  to  defendant's  knowledge,  without  the  knowledge  or 
consent  of  the  husband,  the  defendant  well  knowing  that  the 
same  was  injuring  and  impairing  her  health,  and  concealing  the 
fact  of  such  sales  from  the  husband ;  the  wife  from  the  use  of  such 
laudanum  becoming  sick  and  emaciated,  her  mind  affected  so  that 
she  Tyas  unable  to  perform  her  duties  as  such  wife,  and  her  affec- 
tions becoming  alienated  from  her  husband  so  that  he  lost  her 
society,  and  was  compelled  to  expend  money  in  medical  and  other 
attendance  upon  her.*  After  judgment  against  or  in  favor  of 
husband  and  wife  it  cannot  be  assigned,  as  error  in  fact,  that  prior 

'  Sehullhofer  v.  Metzger,  7  Rob.  576.  den,  50  N.  H.  87,  as  to  divorces,  where 

*  Rice  V.  Shepherd,  12  C.  B.  N.  S.  tlie  courts  have  power  to  settle  the 

832, 104  Eng.  C.  L. ;  Brown  v.  Ackroyd,  liability  of  the  husband  by  the  judg- 

5  Ell.  &  Bl.  819.  85  Eng.  C.  L. ;  Ha^cl6y  ment. 

6  McNamara   v.  Wallace,  MS.,  Gen.  ^  Bradshaw  v.  Beard,  12  C.  B.  N.  S. 
T.,  3d  Department,   Nov.   1873;    Wil-  344,  104  Eng.  C.  L. ;  Ambrose  v.  Kerri- 
hams  V.  Fowler,  McL.  &  Younge,  269 ;  son,  10  C.  B.  776,  70  Eng.  C.  L. 
Warwr  v.  linden.,  11  Am.  Law  Reg.  ■*  Richardsaii  v.  Dubois,  L.  R.,  5  Q. 
N.  S,  279 ,  39  N.  H .  123  :  but  see  PMlUps  B.  5 1 . 

V.  Simmons,  20  How.  342 ;  Say  v.  Ad-        *  Hoard  v.  Peck,  58  Barb.  202. 


en.  lYA.]       COMPLAINT   IN   PARTICULAR   CASES.  319 

lo  tJie  aljeii-cd  marriaiie  to  tlie  husband  slie  was  married  to  another 
person  who  is  still  living.* 

Illegal  contract.''  —  If  the  complaint  show,  upon  its  face,  that 
the  contract  sued  upon  is  illegal,  it  will  be  demurrable ;  but  if  it 
may  or  may  not  be  illegal,  according  to  the  intention  of  the  parties 
as  shown  by  extrinsic  circumstances,  it  will  be  presumed  legal  ;* 
and  it  is  not  necessary  for  the  plaintiff  to  allege  it  is  not  illegal.' 
A  contract  to  pay  the  amount  due  on  a  certain  mortgage  of  real 
estate,  then  assigned  by  the  defendant  to  the  plaintiff  as  liquidated 
damages,  in  case  an  order  of  sale  in  an  action  then  pending  in 
which  the  covenantor  was  a  defendant,  for  the  foreclosure  of  a 
prior  mortgage  on  the  same  and  other  premises,  should  not  require 
the  sale  of  that  part  of  such  premises  not  covered  by  such  assigned 
mortgage,  and  prior  application  of  the  proceeds  of  such  sale  in 
satisfaction  of  the  mortgage  then  being  foreclosed,  before  any  sale 
of  the  residue,  the  order  of  sale  in  such  pending  action  not  con- 
taining any  provision  or  direction  for  selling  any  part  of  such 
mortgaged  premises  before  the  other,  is  legal  and  not  contrary  to 
public  policy.'  An  agreement  by  different  sets  of  bidders  for  a 
public  contract,  by  which  one  agrees  to  pay  a  certain  sum  to 
another  if  he  will  withdraw  his  bid  and  assist  the  promisor  in 
obtaining  the  contract,  is  illegal.'  So  a  note  given  to  a  public 
officer,  for  violating  his  duty  as  such.'  An  agreement,  by  one  in- 
terested in  the  probate  of  a  will,  to  pay  those  threatening  to  oppose 
its  probate,  a  certain  sum  if  they  will  not,  is  valid  f  provided  the 
complaint  allege  a  consideration  by  showing  that  there  was  some 
ground  for  contesting  the  probate  of  the  will,  or  doubt  as  to  its 
validity.'     And  it  has  been  held,  although  we  doubt  the  soundness 

'  Met.  Railway  v.  Wilson,  L.  R.,  6  C.  on    Cont.,    Smith's   Man.   Com.   Law, 

P.  376.  Stepli.  Com.,  Story  on  Agency,  Story's 

^  Upon  tlie   subject,  generally,  see  Eq.  Jur.,  Story  on  Sales,  Taylor's  Ev., 

Adams's  Eq.,  Addison  on  Cont.,  Benj.  Wait's  Law  and  Pr.,  Williams  on  Pars, 

on  Sales,  Bl.  Com.,  Bouv.  Inst.,  Broom's  Prop. 

Com.,  Broom's   Com.    on   Com.   Law,  ^  Brown  v.  Brcnon,  34  Barb.  533. 

Chitty  on  Cont.,  Cowen's  Tr.  (Kings-  *  Waslihurn  v.  Franklin,  28  Barb.  27. 

ley's  *ed.),  Daniell's  Cli.  Pr.,  Edw.  on  ^  Cowdry  v.  Carpenter,  41  N.  Y.  619, 

Bailments,  Edw.  on  Prom.  Notes,  Fry  reversing  S.  C,  1  Rob.  429. 

on    Specific    Perf.,    Hilliard  on   Inj.,  «  Sharp  v.  Wright,  So  Barb.  236. 

Kent's  Cora.,  Kerr  on  Inj.,  and  pages  "^  Devlin  v.  Brady,  36  N.  Y.  534;  At- 

50,  519,  Am.  ed. ;  Kerr  on  Frauds,  and  chison  v.  Ballon,  43  id.  147. 

pages  220,  374,  375, 296,  Am.  ed. ;  Pars.  «  Palmer  v.  North,  35  Barb.  282. 

on  Cont.,  Pars,  on  Part.,  2  Conw.  Rob.  ^  Prater  v.  3Iiller,  25  Ala.  320 ;  BusMy 

Pr.,  4  id.,  5  id.,  6  id.,  Selw.  N.  P.,  Smith  v.  Conway,  8  Md.  55. 


350  COMPLAIIS^T   IN  PARTICITLAE   CASES.       [CH.  IV  A. 

of  tlie  doctrine,  that  the  complaint  must  allege  that  the  testator 
left  assets  more  than  sufficient  to  pay  his  debts  ;*  a  complaint 
which  alleges  that  the  plaintiff  was  about  to  make  application  to 
Ret  aside  a  sale  of  premises,  in  which  plaintiff  was  interested,  on 
mortgage  foreclosure,  on  the  ground  of  irregularity,  whereupon  de- 
fendant promised  to  pay  him  a  cei'tain  sum  if  he  would  not,  is 
defective,  unless  it  also  aver  that  there  was  some  doubt  or  dispute 
as  to  the  regularity  or  validity  of  the  judgment  upon  which  tlie 
defendants  therein  might  have  founded  a  proceeding  to  vacate  it.' 
An  agreement  to  pay  an  expert  a  certain  sum,  upon  condition 
that  the  information  possessed  by  him,  or  the  testimony  given  by 
him  should  enable  the  promisor  to  succeed  in  an  action  relating 
to  a  patent,  the  promisor  agreeing  at  all  times  to  hold  himself  in 
readiness  to  give  his  testimony  or  to  impart  his  information  as  an 
expert,  is  contrary  to  public  policy  and  void.'  So  an  agreement 
by  the  guardian  of  an  infant  with  a  person  becoming  surety  on 
his  official  bond,  that  the  latter  shall  hold  the  property  of  which 
the  former  is  custodian  for  his  own  indemnity,  because  subversive 
of  the  objects  of  the  appointment.*  A  mere  stakeholder  cannot 
object  that  the  contract  between  other  parties,  under  which  money 
reached  him,  was  illegal,  unless  the  court,  in  determining  the 
action,  will  be  compelled  to  carry  out  part  of  the  illegal  contract 
between  the  original  parties."  It  is  not  illegal  to  subscribe  money 
to  aid  in  a  revolutionary  struggle  in  another  country,  if  no  viola- 
tion of  the  neutrality  laws  be  contemplated.* 

Incorporation.  —  It  is  not  necessary  for  a  corporation  suing 
in  a  name  which  would  indicate  it  to  be  such  to  allege  that  it  is 
incorporated.'' 

Indemnity  bond."  —  A  bond  to  indemnify  a  constable  for 
levying  upon  and  selling  property  which  he  had  previously 
levied  upon  is  valid,  notwithstanding  the  constable  had  previously 
levied  upon  the  same  property  by  virtue  of  other  executions,  and 
that  fact  was  not  disclosed  to  the  obligors^ 

Infant."* —  A  complaint  upon  a  contract  against  one  concededly 

*  BusJihy  V.  Conway,  8  Md.  55.  ''  Plmnix  Bank    v.  Donnell,  40  N. 
»  Doleher  v.  FVy,  37  Barb.  153.               T.  410. 

'  Pollak  V.  Oregory,  9  Bosw.  116.  *  See  ante,  title  "Bond." 

*  Poultney  v.  Randall,  9  Bosw.  232.  '  Berry  v.  Hemingway,  56  Barb.  70. 
'^  WoodiDorthx.  Bennett, A?>y>.Y. 21?).  '°  Upon  tbe    subject,  "-enerallv,  seo 

*  Bailey  v.  Belmont,10  Abb.  N.  S.  270.  Tyler  on  Infancy  &  Coverture,  Reeve's 


CII.  IV  A.]       COMPLAIISTT  IN   PAKTICULAR  CASES.  351 

an  infant  which  alleges  that  the  defendant,  knowing  his  age, 
falsely  and  fraudulently  represented  that  he  was  of  full  age, 
whereby  the  plaintiff  was  induced  to  sell  him  goods,  does  not 
state  a  valid  cause  of  action,  if  the  contract  be  made  the  gravamen 
thereof;'  otherwise  if  the  action  sound  in  fraud,  and  be  brought 
for  the  fraud  alleging  the  contract  as  an  inducement  merely,''  but 
the  assertion  that  he  is  not  an  infant  must  be  in  the  particular 
transaction  complained  of/ 

If  goods  be  delivered  to  an  infant,  to  sell  as  the  plaintiff's 
agent,  and  to  account  therefor,  a  complaint  which  alleges  that  he 
has  refused  to  account  therefor  is  not  valid,*  although  if  the  com- 
plaint were  founded  in  tort  for  refusing  to  deliver  the  goods  or 
perhaps  for  converting  the  avails  it  would  lie  ;*  nor  is  he  liable  for 
mere  nonfeasance/  An  infant  is  liable  for  money  actually 
expended  for  necessaries,  or  for  money  lent  to  be  expended  for 
necessaries/  The  mother  of  an  infant  cannot,  without  being 
appointed  his  guardian,  serve  a  notice  to  quit  on  behalf  of  the 
infant  so  as  to  maintain  ejectment  ;^  but  if  a  father,  wuthout  the 
knowledge  of,  or  by  the  authority  of  his  son,  obtain  his  appoint- 
ment as  guardian  it  will  be  assumed  to  be  properly  done,  unless 

Dom.  Rel.,  Addison  on  Cont.,  Addison  Stikeman  v.  Dawson,  1  De  Qex.  &  Sm. 

on   Torts,  Benj.   on   Sales,  Bl.   Com.,  109. 

Bouv.   Inst.,   Broom's   Com.,    Broom's  ^  Eckstiinv.  Frank,lT)a\j,Z'^^,2.ndi 

Com.   on    Common    Law,    Chitty    on  many  cases  cited ;  Wallace  v.  Morse,  5 

Cont.,    Cowen's    Tr.  (Kingsley's   ed.),  Hill,  392 ;   and  see  Kitchen  v.  Lee,  11 

Daniell's  Chy.  Prac,  Estee's  PI.  &  Pr.,  Paige,  107.     We  think  all  the  cases 

Greenl.    Ev.,    Wait's    Law    &    Prac,  can  be  harmonized  by  the  fact  that  in 

Kent's   Com.,  Kerr  on  Inj.,  Kerr  on  some  cases  the  gravamen  of  the  action 

Frauds,  Parsons  on  Cont.,  Parsons  on  was  held  to  be  the  contract,  and  in 

Part.,  1  Conw.  Rob.  Prac,  2  id.,  3  id.,  5  others  for  the  fraud  although  perhaps 

id.,  6  id..  Roper  on  Leg.,  Selwyn's  N.  P.  different  courts  might  not  agree  as  to 

Shear.  &  Redf.  Neg.,  Smith  on  Cont.,  whether  the  particular  action  in  fact 

Smith's  Man.  Com.L.  Smith's  Man.  Eq.,  sounded  in  tort  or  upon  contract ;   see 

Smith's   Real   &   Pers.   Prop.,    Steph.  the  distinction  fully  discussed,  1  Pars. 

Com.,  Story's  Agency,  Story's  Eq.  Jur.,  on  Cont.  (5th  ed.),  316-320. 

Story's   E(].  PI.,   Story's   Part.,  Story  ^  Swain  y.  IIeartt,2  11ovT.  Vr&c.^Q. 

on  Sales,  Taylor  on  Ev.,  Wait's  Law  *  Munger  v.  Hess,  28  Barb.  76. 

&Prac,Washb.  Real  Prop.,  Williard's  '^  Rnhhins  v.  Mount,  33  How.  32,  4 

Eq.,  Williams    on   Ex'rs,  Williams's  Rob.  561. 

Pers.  Prop.,  Williams's  Real  Prop.  «  Randall    v.    8^Deet,    1    Den.    460 ; 

1  Broicn    v.  McCune,  5  Sandf.  224 ;  Smith  v.  OlijjJiant,  2  Sandf .  306,  which 

Merriam  v.  Cunningham,  11  Cush.  40  ;  seems  to  hold  the  point  was  not,  ra 

De  Roo  V.  Foster,  12  C.  B.  N.  S.  272,  fact,  decided  in  the  same  case  the  faU 

104  Eng.  C.  L.  Rep.  and  cases  cited;  before  (Reported,  7  N.  Y    Leg.    Obs 

Price  V.  Hewett,  8  Exch.  146,  18  Eng.  17). 

Law  &   Eq.  522,   and  cases    cited  m  *  Read  v.  Kennedy,  12   Irish   la^* 

note   p.  523 ;  see  note  to  Whitelock's  Rep.  565. 
case,  McNaghten's  Select  Cases,  129  ; 


352  COMPLAINT   IN   PARTICULAR   CASES.       [CII.  IV  A. 

shown  to  the  contrary,  and  tlie  action  will  not  be  defeated  bj  proof 
that  the  son  was  beyond  the  seas  at  the  time  of  the  appointment.* 

Injunction.''' — When  the  injury  complained  of  was  completed 
before  suit  the  court  will  grant  a  mandatory  injunction,  although 
it  will  do  so  only  to  prevent  extreme  or  very  serious  damage.' 
The  erection  of  a  building  will  not  be  restrained  merely  because 
it  deprives  an  ancient  window  of  some  portion  of  its  light,*  unless 
plaintifl*  show  he  will  sustain  substantial  damages,*  for  he  has  an 
adequate  remedy  by  an  action  at  law.  An  injunction  will  lie 
against  one  who  covenants  even  by  parol,  not  to  use  his  building 
lot  except  for  a  certain  purpose  or  in  a  particular  manner,  and  so 
against  one  purchasing  with  knowledge  of  such  a  covenant.* 

After  a  decree  in  partition  the  court  may  grant  an  injunction 
to  restrain  a  defendant  from  wasting  or  injuring  the  property,'' 
but  an  injunction  will  not  be  granted  to  restrain  a  railroad  com- 
pany from  running  its  trains  over  the  plaintiff's  lands  sold  to  it  by 
him  until  paid  for.'  A  defendant  will  be  restrained  by  injunc- 
tion from  violating  an  agreement  not  to  disclose  a  secret  process 
of  manufacturing  an  article,"  or  to  use  it  elsewhere  except  in  the 
plaintiif 's  business.'  So  one  who  has  obtained  a  knowledge  of 
such  a  secret  will  be  restrained  from  using  or  divulging  it  if  his 
doing  so  would  be  a  breach  of  trust." 

'  Morgan    v.    Thorne,    7    Mees.    &  Abb.  292 ;  Wright  v.  Evans,  2  Abb.  N. 

Welsb.  400.  S.    308 ;  Jones  v.  Bone,  L.   R.   9   Eq. 

^  See     on    the     subject,    generally,  673  ;  Carter  v.  Williams,  L.   R.  9  Eq. 

Drewry    on    Inj.,   Kerr  on  luj.    (Am.  678;    Dorr  v.  Harrahan,   101    Mass. 

ed.),  Kerr  on  Frauds  &  Mistake,  Joyce  531 ;    Perkins  v.   Coddington,  4   Rob. 

on  Inj.,  Hilliard  on  Inj.,  Waterman's  647,  650;   Wheeler  v.  Gilsep,85  How. 

Eden  on  Injunctions,  Addison  on  Torts,  146,147;  see  Wolfe  v.  i^^W,  4  Sandf . 

Daniell's  Chy.  Prac,  Estee's  PL,  Barb.  Ch.   72,  and  Moak's  note  to  Clarke's 

Chy.  Prac,  Adams's  Eq.,Willard'sEq.,  Ch.  392,  marg.  p.,  Lester  v.  Barron, 

Ang.  on  Wat.  Courses,  Broom's  Com.,  40  Barb.  297 ;   Maine  v.   Cumston,  98 

Broom's  Com.   on   Com.  Law,  Kent's  Mass.  317,  Kerr  on  Inj.  496  (Eng.  ed.) 

Com.,  Kerr  on  Receivers,  Stepli.  Com.,  '  Bailey  v.  Bobson,  L.  R.  5  Ch.  App. 

Story's  Eq.  Jur.,  Smith's  Man.  of  Eq.,  180. 

Story's  Eq.  PI.,  Tillingh.  &  Shear.  Pr.,  »  Munn  v.  Isle,  etc.,  L.  R.  5  Ch.  App. 

Van  Santv.  Eq.  Pr.,  Wash,  on  Ease-  414. 

ments,  Washb.  on  Real  Prop.  9  Leather,  etc.,  v.  Lorsont,  L.  R.  9  Eq. 

3  Durell  V.  Pritchard,  L.  Rep.  1  Ch.  345  ;  Hammer  v.  Barnes,  26  How.  174, 

App.  244;  Corning  v.  Trotj,  etc.,  40  N.  Kerr  on  Inj.  181  (Eng.  ed.) ;  Bryson  v. 

Y.  191.  Whitehead,  1  Sim.  &  Stu.  74,  and  see 

■*  Clarkew.  ClarJce,li.  R.  1  Ch.  App.  16.  Dunlap's  note  to  Banks's  ed. ;  but  see 

*  Rohson  V.  Whittingham,  L.    R.    1  Deming   v.   Chapman,  11    How.    383, 

Ch.  App.  442.  Kerr  on  Inj.  525  (Eng.  ed.) ;  Nncberry 

^  Western  v.  McDermott,  L.  R.  2  Ch.  v.  James,  2  Meriv.  446  ;  Williams  v. 

App.  72  ;  Talmadge  v.  East,  etc.,  26  N.  Williams,  3  id.  157. 

T.  105,  2  Duer,  614 ;  Maxwell  v.  Same,  'o  Yora.tt  v.  Winyard,  1  Jac.  &  Walk. 

3  Bosw.  124 ;  Schenck  v.  Campbell,  11  394 ;  Green  v.  Folgam,  I  Sim.  &  Stu.  398. 


Cil.  IV  A.]       COMPLAINT   IIST   PAETICULAR  CASES.  353 

So,  altliougli  a  court  of  equity  cannot  compel  an  actor  or  singer 
specifically  to  perform  a  contract  to  do  so/  yet  it  will  restrain 
him  from  doing  so  elsewliere  than  at  a  place  where  he  has  con- 
tracted to  perform  or  sing,  if  the  contract  contain  an  agreement 
not  to  do  so  elsewhere  /  otherwise  if  the  contract  contain  no  such 
agreement,^  or  if  plaintiff  has  no  theatre  from  which  custom  may 
be  drawn.*  In  general  a  final  injunction  will  not  be  granted 
unless  specially  prayed  for  by  the  complaint ;  because  the  defend- 
ant might  make  a  different  case  by  his  answer  against  the  general 
words  of  the  bill  from  what  he  would  make  against  the  special 
prayer  for  an  injunction,^  and  so  a  temporary  injunction  should 
be  prayed  for  if  the  facts  upon  which  it  is  asked  for  exist  at  the 
commencement  of  the  suit,'  and  must  demand  some  ultimate 
relief  relative  to  the  matter  in  controversy,^  and  show  the  plaintiff 
entitled  thereto.* 

The  authorities,  as  above  stated,  hold  that  the  complaint  must 
pray  for  a  temporary  injunction.  If  the  question  were  not  res 
adjiidicata  I  do  not  see  why  it  should  be  so  held,  where  the 
complaint  states  facts  which  show  the  plaintiff  entitled  to  such 
relief.'  An  injunction  will  not  be  issued  to  restrain  a  mere  tres- 
pass.'" 

Innkeeper." — An  innkeeper  is  liable  for  the  damages  sus- 
tained by  a  guest  from  the  kicking  of  his  horse  by  a  stallion,  the 
property  of  another  guest,  if  the  stallion  be  negligently  put  in  an 
open  stall,  although  the  owner  himself  be  backing  his  horse  from 

'  Sanquirico  v.  Beneditti,  1  Barb.  315 ;        **  Hartt  v.  Harvey,  32  Barb.  55. 
Eaight  v.    Badgeley,    15    Barb.    499  ;        ^  Reyncll  v.  Sprye,  1  De  Gex,  MacN. 

Lumley  v.   Gye,  2  Ell.  &  Bl.  216,  75  &  Gordon,  6G0,  1  Dan.  Ch.   Pr.  (4th 

Eng.  C.  L.  Am.  ed.),  388,  2  id.  1614,  1682. 

2  Kerr  on  Inj.  (Eng.  ed.)  521,  527;        '^  Murray  v.  Kiiapp,  42  How.  462. 
Webster  v.  Dillon,  3  Jur.  N.  S.  432;        "  Upon  the  subject,  generally,  see 

Fredericks  v.   Mayer,  13  How.  566,  1  Addison   on    Cont.   360,    Addison    on. 

Bosw.  227 ;   De  Pol  v.  Solke,  7  Eob.  Torts,  Bl.  Com.,  Bouv.  Inst.,  Broom'a 

280 ;  Fochter  v.  Montgomery,  33  Beav.  Com.,  Broom's  Com.  on  Common  Law, 

22,  and  notes  S.  C. ;  Lumley  v.  Wagner,  Chitty    on    Cont.,    Cowan's     Treatise 

I  De  Gex,  MacN.  &  Gord.  604,  619, 13  (Kingsley's    ed.),   Edwards    on    Bail- 
Eng.  Law  &  Eq.  252  ;  Hayes  v.  Wiilio,  ments,  Hilliard   on  Torts,  Hilliard  on 

II  Abb.  N.  S.  167.  Remedies  for  Torts,  Kent's  Com., 
^  Butler  V.  Galletti,  21  How.  465.  Parsons  on  Contracts,  2  Conw.  Rob. 
*  De  Pol  V.  Solke,  7  Rob.  280.  Prac,  4  id.,  6  id.,  Selwyn's  N.  P., 
»  2  Story's  Eq.  Jur.,  §  863.  Shear.  &  Redf.  Neg.,  Smith's  Man.  C. 
^  Ho'oeyY.McCrea,4:'H.ow.Zl;Olssen  L.,  Stephen's  Com.,  Story  on  Bailm., 

V.  Smith,  7  id.  481 ;   Vincent  v.  King,    Taylor's    Ev.,   Wait's    Law  &  Prac, 
13  id.  239.  Wooddeson's  Lect. 

'  Eulce  V.  Thompson,  8  How.  475. 

45 


354  COMPLAINT   IN   PARTICULAR  CASES.       [CH.  IV  A. 

anotlier  stall  preparatory  to  leaving,  and  have'  paid  his  bill, 
although  the  innkeeper  would  not  be  liable  unless  guilty  of 
negligence  in  some  way/  The  owner  of  property  loaned  or  hired 
to  another  is  not  a  guest  and  an  innkeeper  is  not  liable  to  him 
as  such,''  although  if  he  be  guilty  of  a  tort  or  actual  negligence 
resulting  in  the  loss  of,  or  injury  to  the  goods  of  the  owner  he 
would  be  liable  for  that.'  An  innkeeper  is  liable  for  a  package 
of  extraordinary  value,  delivered  to  his  clerk  and  put  in  his  safe, 
although  the  o^Tier  do  not  give  notice  of  its  extraordinary 
character.*  When  one  goes  to  an  inn  in  the  character  of  a  guest 
and  stays  there  for  se'oeral  montlis,  being  occasionally  absent  for 
several  days,  but  always  with  the  intention  of  returning,  he  is  a 
guest  with  all  the  rights  and  liabilities  of  such.^  If  an  innkeeper 
keep  a  safe  for  thew reception  of  money,  jewels  or  ornaments,  and 
posts  up  in  the  room  of  his  guest  a  notice  that  they  may  be 
deposited  in  the  safe,  pursuant  to  a  statute  declaring  that  he  shall 
not  be  liable  for  any  loss  thereof,  in  case  the  guest  neglects  to 
so  deposit  them,  he  is  not  liable  for  the  loss  of  any  money,  jewels 
or  ornaments,  not  deposited  in  the  safe,  not  even  for  such  as  the 
guest  requires  for  traveling  expenses  or  personal  convenience.' 
The  statute,  however,  only  exempts  the  innkeeper  from  liability 
for  the  precise  property  named  therein,  and  he  is  liable  for  a  watch/ 
The  innkeeper,  however,  is  liable  for  goods  stolen  after  delivery 
to  the  guest,  preparatory  to  leaving.*  The  lien  of  an  innkeeper 
extends  to  all  goods  brought  to  the  inn  by  a  guest  and  received  by 
him,  though  they  are  the  property  of  a  third  person,  provided  he 
does  not  know  they  are  such,  as,  for  example,  a  piano-forte.* 
Insurance/"  —  Upon  a  policy  of  insurance  against  fire,  issued 

'  Seymour  v.  Cook,  35  How.  180,  53  689,  and  Moak's  note,  p.  699 ;  Jones  v. 

Barb.  451.  Morrell,  42  Barb.  623. 

*  DaiDSon  v.  Chamney,  5  Q.  B.  164,  "•  See  Pars,  on  Marine  Ins.,  Phillips 
48  Eng.  C.  L. ;  S.  C.,2  N.  Y.  Leg.  Obs.  on  Ins.,  May  on  Ins.,  Bunyan's  Life 
413.  Assur.,  Add.  on  Cont.,  Add.  on  Torts, 

^  CoykendaU  v.  Eaton,  37  How.  446,  Black.  Com.,  Bouv.  Inst.,  Broom's  Com., 

55  Barb.  188.  Broom's  Com.  on  Com.  Law,  Cliitty  on 

*  Wilkim  V.  Earle,  44  N.  T.  172,  re-  Cont.,  Cowen's  Tr.  (Kingsley's  ed.), 
versing  3  Rob.  352.  Edw.  on  Bailm.,  Estee's  PI.  and  Prac, 

6  Allen  V.  Smit/i,  12  C.  B.  N.  S.  638,  Greenl.   Ev.,  Kent's    Com.,    Kerr  on 

104  Eng.  C.  L.  Frauds,  Pars,  on  Cont.,  1  Conw.  Rob. 

«  Hyatt  V.  Taylor,  42  N.  T.  258,  51  Prac,  2  id.,  4  id.,  5  id.,  6  id.,  Selw.  N. 

B.  632.  P.,   Smith's   Man.  Com.   Law,   Steph, 

''  Rnmaley  v.  LeUnd,  43  N.  T.  539.  Com.,  Story's  Eq.  Jur.,  Taylor  on  Ev., 

*  Benditson  v.  French,  46  N.  Y.  266.  Wait's   Law  and  Prac,  Williams  on 

*  Threlfall  v.  Borwick,  2  Eng.  Rep.  Real  and  Pers.  Prop. 


OH.  IV  A.]       COMPLAINT  IN   PARTICULAR  CASES.  855 

to  A,  loss,  if  any,  payable  to  B,  the  latter  may  maintain  an  action 
in  his  own  name.' 

Interpleader.''  —  In  the  examination  of  cases  upon  the  subject 
of  interpleader,  the  reader  should  bear  in  mind  that  there  are, 
independent  of  section  122  of  the  Code,  three  classes  of  inter- 
pleaders. 1.  Interpleaders  at  common  law,  which  had  a  very 
narrow  range,  being  confined  to  cases  where  there  was  a  joint  bail- 
ment by  the  claimants,  and  a  few  other  cases.^ 

2.  Equitable  interpleader,  "  where  two  or  more  persons  severally 
claim  the  same  thing  under  different  titles,  or  in  separate  interests 
from  another  person,  who,  not  claiming  any  title  or  interest  therein 
himself,  and  not  knowing  to  which  of  the  claimants  he  ought  of 
right  to  render  the  debt  or  duty  claimed,  or  to  deliver  the  prop- 
erty in  his  custody,  is  either  molested  by  an  action  or  actions 
brought  against  him,  or  fears  that  he  may  suffer  injury  from  the 
conflicting  claims  of  the  parties.  He  therefore  applies  to  a  court 
of  equity  to  protect  him,  not  only  from  being  compelled  to  pay 
or  deliver  the  thing  claimed  to  both  the  claimants,  but  also  from 
the  vexation  attending  the  suits  which  are,  or  possibly  may  be, 
instituted  against  him."  * 

3.  A  suit  in  the  naiure  of  a  bill  of  interpleader,  which  lies 
when  the  plaintiff  claims  some  interest  in  the  property  or  subject- 
matter  of  the  dispute  to  establish  his  own  rights  and  those  of 
other  claimants/ 

The  complaint,  in  an  equitable  suit  for  interpleader,  should 

'  Frink  v.  Tlie  Hampden, etc.,!  Abb.  §  123,  VoorMes'  &  Wait's  Codes  ;  Add. 

N.   S.  343;    explaining    Grosvenor    v.  on  Cont.,  Add.  on  Torts,  Black.  Com., 

Atlantic,  etc.,  17  N.  Y.  391  ;    Freeman  Boiiv.    Inst.,   Broom's   Com.,   Broom's 

\.  Fulton,  etc.,  \4i  Kb\).ZQ^,a,ndi.  Folder  Com.    on  Com.  Law,  Drewry  on  Inj., 

V.  New  York,  etc.,  26  N.  Y.  425.  Estee's  PI.  and  Prac,  Hilliard  on  Inj., 

'^  Upon  the  subject,  generally,  see  2  Joyce  on  Inj.,  Kerr  on  Inj.,  Redf.  on 

Story's  Eq.  Jur.,  i^§  801-824;  Story's  Railw.,     Reeves's     Hist.     Eng.    Law, 

Eq.  PI.  391-297,  c;  2'Waterman's  Eden.  Smith's  Man.  Com.  Law,  Till.  &  Shear, 

on  In].  39o,maro'.p.  and  notes ;  Adams's  Prac,  Willard's  Eq.  Jur. 

Eq.   202-307,  marg.  pp. ;  3  Daniell's  ^  2   Story's    Eq.    Jur.,  §§   801-804  ; 

Ch.  Pr.,  4th  Am.  ed. ;  Kerr  on  In].  118-  Smith's  Man.  of  Eq.  401. 

131,  Eng.  ed.;  Equity  Draftsman,  204,  ■*  2  Story's  Eq.  Jur.,  §  806;  Smith's 

and  cases  cited  in  note;  3  Barb.  Ch.  Man.  of  Eq.  401 ;  Adams's  Eq.  202.;  2 

Pr.  118-136  ;  Smith's  Manual  of  Eq.,  Barb.  Ch.  Pr.  117. 

1st  Am.  ed.,  401-404 ;  Curtis's  Eq.  Prec.  ^  2  Story's  Eq.  Jur.,  §  824  ;  Adams's 

6a  66;  1  Abb.   Forms,  567;  see,  also,  Eq.  206,  'marg.  pp.;  Story's  Eq.   PI., 

note  to  Bedell  v.  ^o/fTOaw,2  Paige,201,  §  397,  6  ;  2  Waterman's  Eden,  on  Inj. 

2ded.,andMr.  Dunlap'snotetoM«c7iP(!Z  '2>S)%,marg.  jo;?.  and  notes;  3  Daniell's 

-7.  Hayne,  2  Sim.  &  Stu.  64,  Banks's  ed.,  Ch.  Pr.,  4th  Am.  ed. 
and   Townpend   and   Wait's   notes   to 


35(5  COMPLAIiSTT   I]^   PAETICULAR   CASES.       [CH.  IV  A. 

state  \h.Q  facts  showing  a  right  to  compel  the  parties  to  interplead. 
It  should  state  the  plaintiff's  own  rights,  and  thereby  negative 
any  interest  in  the  controversy/  It  should  state  \he  facts  rela- 
tive to  the  several  claims  of  the  opposing  parties  specifically,  so 
that  they  might  appear  to  be  of  the  same  nature  and  character, 
and  the  fit  subject  of  a  bill  of  interpleader,  to  wit :  that  there  is  a 
privity  of  some  sort  between  all  the  parties,  as  privity  of  estate, 
or  title,  or  contract,  and  that  the  claim  by  all  is  of  the  same 
nature  and  character."  It  should  show  that  there  are  proper  per- 
sons in  being  capable  of  interpleading  and  of  setting  up  opposite 
claims.*  It  should  show  a  clear  title  in  the  plaintiif  to  maintain 
the  action,  for  otherwise  the  bill  would  be  dismissed,  however 
proper  in  other  respects  the  case  might  be  for  an  interpleader ;  as 
if,  for  example,  the  bill  should  show  the  plaintifif  had  received 
the  money  as  agent  for  one  of  the  parties,  it  would  be  dismissed 
because  he  is  bound  to  pay  it  over  to  his  principal,  notwithstand 
ing  any  intervening  claim  of  a  third  person.*  It  should  show 
that  the  plaintiff  claims  no  interest  himself,*  and  should  offer  to 
bring  the  fund  or  property  into  court  to  be  disposed  of  as  the 
coi.rt  shall  direct.*  It  should  pray  that  the  defendants  may  set 
forth  their  several  titles,  and  may  interplead  and  settle  and  adjust 
their  demands  between  themselves.  It  generally  prays  an  injunc- 
tion to  restrain  the  claimants,  or  either  of  them,  from  proceeding 
against  the  plaintifi'  upon  or  by  reason  of  their  claims  or  demands,* 
and  that  plaintiff  may  be  paid  his  costs  out  of  the  fund  or  matter 
in  dispute.  The  plaintiff  should  also  annex  his  affidavit  that  he 
does  not  collude  with  either  of  the  defendants,  and  if  by  a  cor- 
poration, an  affidavit  of  one  of  its  officers  that  he  does  not,  and 
that,  to  the  best  of  his  knowledge  and  belief,  the  corporation  does 
not  collude  with  either  of  the  defendants,  should  be  annexed.* 

The  bill  being  filed,  the  defendants  are  required  to  answer, 
setting  out  their  claims.  The  plaintiff  is  not  interested  in  or 
entitled  to  any  judgment  except  that  the  defendants  interplead.* 
This  should  be  remembered  by  the  defendants,  for  when  that  is 
rendered  the  plaintiff  is  out  of  the  case,  and  if  the  unsuccessful 

'  Story's  Eq.  PI.,  §  292.  «  Atkinson  v.  Manks,  1  Cow.  691  ;  3 

«  Story's  Eq.  PI.,  g  293.  Barb.  Cli.  Pr.  125 ;  Seaton  on  Decrees, 

«  Story's  Eq.  PI.,  S<  295.  340  ma/rg.  p. ;  Kerr  on  Inj.  131  (Eng, 

*  Story's  Eq.  PI.,  §  296.  ed.) ;  Bedeli  v.  Hoffman,  2  Paige,  200. 
»  Story's  Eq.  PI.,  §  297. 


on.  IV  A.J       COMPLAINT  IN   PARTICULAR   CASES.  357 

defendant  after  trial  between  the  defendants  appeal  lie  is  not 
bound  to  make  the  plaintiff  a  party  to  the  appeal,  and  will  not  be 
liable  to  him  for  costs.  In  such  cases  there  is  this  object  in  trying 
the  case  as  to  the  plaintiff's  right  to  maintain  the  action  first,  and 
having  judgment  rendered  thereon,  leaving  the  rights  of  the 
defendants  as  against  each  other  to  be  determined  as  directed  by 
the  judgment.  The  plaintiff  is  under  no  obligation  to  serve  a 
copy  of  the  answers  of  the  several  defendants  upon  the  others ;' 
although,  under  the  old  practice,  defendants  were  entitled  to  read 
each  others'  answers  at  the  hearing,  and  were  allowed  costs  for  a 
copy  of  the  answers  of  other  defendants,  which  were  required  to 
be  filed  before  service."  JSTor  is  one  defendant  entitled  to  notice 
of  a  commission  issued  by  a  co-defendant."  Mr.  Dickens  was  of 
opinion  that  such  a  commission  could  only  be  issued  upon  the 
question  as  to  whether  the  plaintiff"  had  proper  cause  for  filing 
a  bill  of  interpleader,  and  that,  as  the  rights  of  the  defendants,  as 
between  themselves,  must  be  tried  after  the  decree,  evidence 
taken  before  that  could  not  be  read  against  a  co-defendant  without 
notice  of  the  application  for  the  commission,  and  an  opportunity 
to  join  therein.*     In  this  we  think  he  is  clearly  right. 

A  defendant  who  makes  a  claim  against  a  co-defendant  is  an 
adverse  party,^  and  under  the  Code*  may  compel  a  co-defendant 
to  file  his  answer,  and  thus  procure  a  copy  thereof.  The  court, 
aft(3i  determining  that  the  action  was  properly  brought,  and  that 
the  defendants  interplead,  makes  such  decree  as  to  the  manner  in 
which  the  rights  of  the  defendants  shall  be  determined  as  is  appro- 
priate. If  their  rights  depend  upon  equitable  principles,  it 
retains  the  case  and  settles  them  ;  if  upon  legal,  it  awards  an  issue 
to  be  tried  before  a  jury,  authorizes  one  party  to  bring  a  suit  at 
law  against  the  other,  or  allows  one  of  the  parties  to  defend  an 
action  at  law  already  brought  by  the  other,  reserving  the  case  for 
further  consideration.''     "We  have  thus  been  somewhat  m.inute  as 

1  Moak's  notes  to  Clarke's  Ch.  15,  «  Cotes   v.    Smith,  31  How.  146 ;  28 

marg.  p. ;  and  see  Levitt  v.  Fisher,  4  id.  436. 

Duer,  1.  6  Section  416. 

^  Smith's  Ch.  Pr.  (2d  Am.  ed.),  475  ;  ''  Lys  v.  Withers,  cited  in  Seaton  on 

Bowyer  v.  Prichard,  11  Price,  103.  Decrees,  340,  maj^g.  p. ;  Angell  v.  Had- 

^  Brymer  v.  Buchanan,  1  Cos  Ch.  den,  16  Ves.  203  ;    Seaton  on  Decrees, 

^24.  340,  marg.  p. ;  Curti.s's  Eq.  Prec.  447  ; 

■*  Buncannon  v.  Campbell,  2  Dickens,  2  Story's  Eq.  Jur.,  ^5  822 ;  City  Bank  v. 

648,  note.  Banga,  2  Paige,  570-572  ;  Waterman's 


358  COMPLAINT   IlSr   PARTICULAE   CASES.       [CH.  IV  A. 

to  the  fomier  practice  after  the  complaint  was  served,  in  order  to 
determine  as  well  as  we  could  the  proper  practice  under  a  fourth 
class  of  interpleader  allowed  by  the  Code,^  which  provides  that : 
"  A  defendant  against  whom  an  action  is  pending  upon  a  contract, 
or  for  specific  real  or  personal  property,  may,  at  any  time  before 
answer,  upon  affidavit  that  a  person  not  a  party  to  the  action,  and 
without  collusion  with  him,  makes  against  him  a  demand  for  the 
same  debt,  or  property,  upon  due  notice  to  such  person,  and  the 
adverse  party,  apply  to  the  court  for  an  order  to  substitute  such 
person  in  his  place,  and  discharge  him  from  liability  to  either 
party  on  his  dej)ositing  in  court  the  amount  of  the  debt,  or  deliv- 
ering the  property,  or  its  value,  to  such  person  as  the  court  may 
direct;  and  the  court  may,  in  its  discretion,  make  the  order." 

1^0  provision  is  here  made  as  to  the  course  to  be  pui'sued  after 
the  order  for  the  substitution  of  the  adverse  claimant  is  made. 
The  complaint  is,  of  course,  against  the  original  defendant,  and 
we  are  not  able  to  see  how  the  substituted  defendant  is  to  answer 
that.  The  allegations  are  not  against  him,  nor  do  they  point  to 
him.  "We  find  no  ease  upon  the  question,  nor  do  we  find  any- 
where a  suggestion  as  to  the  course  to  be  adopted.  We  think, 
however,  that  after  the  court,  in  this  summary  method,  has  deter- 
mined that  an  interpleader  be  had,  in  analogy  to  the  practice  of 
providing  by  the  decree  of  interpleader  how  the  rights  of  the 
defendants  be  determined,  the  order  for  interpleader  should  provide, 
as  allowed  by  section  177  of  the  Code,  that  the  plaintiff,  if  so 
advised,  be  at  liberty,  within  twenty  days,  to  serve  upon  the  sub- 
stituted defendant  an  amended  complaint,  alleging  also  the  facts 
material  to  the  case  occurring  after  the  former  complaint.  The 
plaintiff  may  then  serve  an  amended  complaint,  containing  sub- 
stantially the  allegations  of  the  former,  and  the  further  allegations 
that,  on  a  day  named,  the  plaintiff  brought  an  action  in  this  court 
against  the  original  defendant  (naming  him)  upon  the  aforesaid 
contract  (or  for  the  aforesaid  specific  real  or  personal  property). 
That  the  original  defendant  befoi-e  answer,  upon  affidavit,  that  the 
substituted  defendant,  without  collusion  with  him,  made  against 

Eden  on  Inj.  405,  wars'. pp.;  SDaniell'a  Hodges  v.  Smith,  1  Cos  Ch.   357,  by 

Cli.  Prac.    (4tli  Am.  ed.)     See  llasle-  showing  that  the  successful  defendant 

wood,  arguendo  in  FairhrotJier  v.  Prat-  gave  evidence  proving  Ms  case. 
tent,    Daniell'g  Exch.    65,  correcting        '  Section  133. 


CII.  IV  A.]       COMPLAIiSTT   IjST   PARTICULAK   CASES.  359 

him  (the  original  defendant")  a  demand  for  the  same  debt  or  prop- 
erty, and  did,  npon  due  notice  to  said  substituted  defendant  and 
the  plaintifi",  apply  to  this  court,  at  a  special  term  thereof  (specify- 
ing the  time  when  and  the  place  where  it  was  held),  for  an  order 
to  substitute  said  substituted  defendant  in  his  place  and  discharge 
him  from  liability  to  either  party,  on  his  depositing  in  court  the 
aui  "(unt  of  the  debt,  or  delivering  the  property  or  its  value  to  such 
pel  son  as  the  court  might  direct. 

That  the  court,  at  such  special  term,  after  hearing  counsel  for 
the  plaintiff",  for  the  original  defendant,  and  the  substituted  defend- 
ant did  make  an  order  that,  it  appearing  that  the  substituted 
defendant,  without  collusion  with  the  original  defendant,  made  a 
demand  against  him  for  the  same  debt  or  property,  it  was  ordered 
that  the  substituted  defendant  be  substituted  as  defendant  herein, 
in  the  place  of  the  original  defendant,  and  that  on  the  original 
defendant  depositing  with  the  clerk  of  the  county  named  in  the 
complaint  as  the  place  for  the  trial  hereof  the  amount  of  the 
debt,  or  the  property  specified  in  the  complaint,  he  be  discharged 
from  liability  to  either  party.  That  the  original  defendant  has 
complied  with  said  order  by  depositing  with  said  county  clerk  the 
amount  of  such  debt,  or  the  said  property.* 

The  complaint  should  then  demand  judgment,  that  the  plaintiff 
is  entitled  to  the  amount  so  deposited,  or  the  property  specified 
in  the  complaint,  and  that  he  recover  his  costs  of  the  action. 

The  substituted  defendant  by  his  answer  to  such  a  complaint 
can  present  proper  issues  for  trial,  and  the  court  can  render  an 
intelligible  judgment  upon  the  issues  thus  presented.  Should  it 
be  said  that  the  plaintiff's  action  at  law,  in  which  he  was  entitled 
to  a  trial  by  jury,  may  thus  be  changed  to  a  suit  in  equity,  where 
he  is  not,  we  answer  that  the  questions  of  fact  which  might  have 
been  raised  on  the  original  complaint  are  all  determined  in  his 
favor  by  the  order  for  an  interpleader  between  him  and  the 
adverse  claimant,'  and  that  if  any  question  of  fact  is  raised  by  the 
answer  of  the  adverse  claimant  to  the  amended  complaint,  either 

'  UnderUll  v.  Crawford,  18  How.  113 ;  29  Barb.  664. 

^Of  3ourse  tb'^  pleadei  m\\  uce  cha  'r^„me  ci  the  original  defendant,  instead  of  tho 
words  "original  defendar.t,"  ani  thi  name,  of  the  substituted  defendant,  instead  of 
tlie  words  "substituted  defendant." 


360  COMPLAINT  IN  PAETICULAR   CASES.       [CH.  lY  A. 

party  may  procure  a  settlement  of  tlie  issues,'  and  thus  secure  a 
trial  by  jury. 

It  is  no  objection  to  a  bill  of  interpleader,  tliat  one  party's 
rights  are  legal  and  the  others  equitable,  but  they  must  both 
claim  the  same  subject  adversely  and  not  under  each  other,"  The 
plaintiff  may  be  deprived  of  costs  and  decreed  to  pay  the  costs 
of  defendants  who  acted  properly.  Defendants,  who,  by  persisting 
in  an  unfounded  claim,  have  caused  the  suit  to  be  proceeded  with, 
may  be  decreed  to  pay  the  costs  of  their  co-defendants  and  of  the 
plaintiff.''  Interpleader  lies  against  different  persons  claiming  a 
reward.^ 

Intoxication/ — A  complaint  which  seeks  to  set  aside  a  con- 
veyance on  this  ground  does  not  state  a  good  cause  of  action  unless 
it  also  show  that  the  party  was  so  completely  intoxicated  as  to  be 
deprived  of  the  use  of  his  reason  or  that  the  intoxication  had 
produced  seyiile  dementia,  or  unless  it  show,  in  addition  to  partial 
intoxication,  some  circumstances  of  fraud  or  undue  influence.' 
Nor  is  inadequacy  of  price  alone  sufficient,  unless  so  gross  as  to 
shock  the  conscience  of  any  man  who  heard  the  terms,  or  so  gross 
as  to  be  conclusive  evidence  of  fraud.' 

Joint  Debtors/ —  A  proceeding  under  section  375  of  the  Code  to 
bind  a  joint  debtor  not  originally  summoned,  is  not  a  new  action,  but 

^  Supreme  Court,  rule  40.  remedy  see  Moak's  note  to  Clarke's  Cli. 

*  Glynne  v.  Locke,  2  Connor  &  Law-    118,  ed.  1869. 

eon,  21.  ^  Burns  v.   O'Rourke,  5  Rob.    649, 

3  Fargo  v.  Arthur,  43  How.  193.  Smith's   Man.   of  Eq.   67  ;    Smith    v. 

*  Upon  the  subject,  generally,  see  Downing,  West's  Rep.  90,  and  cases 
Moak's  notes  to  Clarke's  Ch.,  pp.  96,  cited  in  note  ;  Cory  v.  Gory,  1  Ves.  19 ; 
430  (ed.  1869),  Smith's  Man.  of  Eq.  67,  Cook  v.  Claysworth,  18  id.  15 ;  Jolin- 
West's  Rep.  90  and  note.  Add.  on  Cont.  son  v.  Medlicott,  3  Peere  Williams,  130, 
1033,  Benj.  on  Sales,  23,  Bouv.  Inst.  Smith  on  Cont.  348  (5th  Am.  ed.),  and 
title  "  Drunkenness,"    Broom's  Com.,  note  307,  marg.  p. 

Broom's  Com.  on  Common  Law.Chitty  «  Smith  v.  Downing,  West's  Rep.  90, 

on    Cont.     title     Drunkard,    Cowen's  and  see  the  numerous  cases  cited  in 

Treatise  (Kingsley's  ed.),  2  Greenl.  Ev.  Mr.  West's  note. 

§  374,2  Kent's  Com.  451,  452,  war^r.  'Upon  the  subject,  generally,   see 

pp.,  Kerr  on  Inj.  44,  Kerr  on  Frauds,  Moak's  notes  to  Clarke's  Ch.  173,  ed. 

147  (1st  Am.  ed.).  Pars,   on   Cont.,  3  1869,  id.  p.  100  ;  Bouv.  Inst.,  Chitty  on 

Conw.  Rob    Pr.  240,  5  id.  227,  Selw.  Cont.,   Cowen's   Tr.    (Kingsley's   ed.), 

N.  P.  (13th  ed.),  490,  Smith  on  Cont.  Daniell's   Ch.  Prac,  Estee's  "Pl.   and 

307,  7narg.  p.,  and  see  the  elaborate  Prac,  Kent's  Com.,  Kerr  on  Frauds, 

note  to  Johnson's   (5th   Am.  ed.,  pp  425-27,   1st   Am.   ed. ;    1   Conw.   Rob. 

348,   349),    Smith's  Man.  of  Common  Prac,  2  id.,  3  id.,  4  id.,  5  id.,  6  id.; 

Law,  74  (1st   Am.  ed.).  Smith's  Man.  Selw.  N.  P.,  Smith  on   Cont.,  Steph. 

Eq.  66,  Story's  Eq.  Jur.,  ^§  230,  232,  Com.,  Story's  Eq.  Jur.,  Story's  Eq.  PL, 

Steph.  Com.,  Story  on  Sales,  Taylor's  Taylor's  Ev.,  Till.&  Shear.  Prac,  Van 

Ev.,  Wait's  Law  &  Pr.  898,  as  to  the  santvoord'sEq.Pr.,Wait's  Law  &  Prac, 

Willard's  Eq.  Jur. 


CH.  IV  A.]       COMPLAINT  IN   PAETICULAR   CASES.  361 

a  further  proceeding  in  the  old  action/  so  that  the  defendant  not 
originally  served  could  not,  as  the  Code  stood  before  the  amend- 
ment of  1866,  plead  the  statute  of  limitations;"  otherwise,  under 
that  amendment,'  the  judgment  against  a  defendant  not  served  is 
one  of  form  only ;  such  defendants  are  not  "  judgment  debtors  " 
•within  section  388  of  the  Code,  allowing  the  rejpresentatives  of  a 
judgment  debtor  to  be  summoned/  The  original  cause  of  action, 
and  not  the  judgment,  is  the  gist  of  the  action/  The  proceeding 
under  the  Code  is  a  substituted,  not  a  cumulative  remedy,"  and 
the  plaintiff  may  bring  a  second  action  against  both  defendants 
alleging  the  recovery  of  the  former  judgment,  setting  out  the 
joint  obligation,  and  serving  process  on  the  defendant  not  served 
in  the  former  action ; '  but  this  should  not  be  done  where,  includ- 
ing the  time  after  the  rendition  of  the  former  judgment,  the 
statute  of  limitations  has  run  against  the  demand.  The  plaintiff 
can  only  protect  himself  from  the  running  of  the  statute  after  the 
former  judgment  by  proceeding  under  section  375.  The  proceed- 
ing under  that  section  is  to  be  only  against  the  defendant  not  served.* 
The  summons  should  conform  to  the  requirements  of  the  Code." 
!N^o  provision  is  made  in  the  case  of  joint  debtors  for  a  new 
complaint,  although  there  is  for  an  affidavit  that  the  judgment 
has  not  been  paid.*" 

No  new  complaint  seems  to  be  contemplated  by  the  Code. 
The  defendant,  ^'■ujjon  such  summons^^^  may  answer,"  but  the 
answer  would  seem  to  be  one  to  the  original  complaint,"  or  more 
strictly,  perhaps,  to  the  summons,  or  the  facts  required  to  be 
stated  therein,'^  although  it  is  not  very  material  which,  as  the 
Code  explicitly  prescribes  what  defenses  may  be  interposed  by 
the  answer.**  Mr.  Crary  seems  to  be  of  opinion  that,  in  proceed- 
ings against  heirs,  next  of  kin  or  legatees,  a  complaint  should  be 

»  Fairehild  v.  Durand,  8  Abb.  305.  »  Johnson  v.  Smith,  23  How.  445-46, 

2  Berlin  v.  Hall,  48  Barb,  442.  14  Abb.  421. 

3  Code,  §  379.  »  §§  377,  375 ;  see  2  Crary's  Pr.  484, 

4  Foster  Y.  Wood,  1  Abb.  N.  S.  150,  485.  ' 

30  How.  284.  10  Code,  §  378. 

5  Oakley  v.  Aspinicall,  4  N.  Y.  513,  "  Code,  §  379 ;  Harper  v.  Bangs,  18 
13  id.  500 ;    Ca/rman  v.    Townsend,  6    How.  457. 

Wend.  206.  '«  See  the  various  sections,  particu* 

«  Lane  v.  Salter,  4  Rob.   239,  242  ;  larlv  §§  379,  380,  381. 

Dean  v.  Eldredge,  29  How.  218.  "  1  Crary's  Pr.  608. 
''Dean  v.  Eldredge,  29  How.  218,       i*  S  379. 

222. 

4e 


362  co:mplaixt  ix  particular  cases,     [ch.  iva, 

served  with  tli3  summons.'  The  Code,  however,  makes  no  such 
distinctiou.  The  action,  if  on  contract,  lies,  although  a  wronglul 
refusal  be  alleged.''  When  co-administrators  execute  a  joint  bond 
as  such,  each,  and  the  surety  of  each,  is  liable  for  the  acts  and 
omissions  of  the  other,  though  one  have  received  no  portion  of 
the  assets.' 

Judgments.  —  In  an  action  upon  a  judgment  the  complaint 
should  allege  that  leave  to  bring  an  action  upon  the  judgment 
was  duly  granted  under  section  seventy-one  of  the  Code,*  and 
although,  perhaps,  not  strictly  necessary,  it  should  show  when  the 
order  granting  such  leave  was  made ;  that  it  was  made  for  and 
"upon  good  cause  shown,  and  upon  notice  to  the  defendant.^  K 
the  pleader  do  not  avail  himself  of  the  provision  of  the  Code 
allovt'ing  him  to  plead  that  a  judgment  or  determination  of  an 
inferior  court  was  duly  given  or  made ;  or,  if  it  be  a  foreign  judg- 
ment, "  he  must  set  out  facts  showing  that  the  court  not  only  had 
jm-isdiction  of  the  subject-matter,  but  that  it  also  acquired  juris- 
diction over  the  person  of  the  defendant,^  except  that,  in  an  action 
against  a  plaintiff  upon  a  judgment  for  costs,  the  pleader  need  not 
aver  jurisdiction  of  the  subject-matter.*  In  an  action  upon  a 
justice's  judgment,  the  complaint  should  allege  either  that  the 
parties  appeared  in  the  action  and  joined  issue,'  or  that  a  summons 
or  other  process  was  issued  and  personally  served  upon  the 
defendant." 

But  merely  appearing  and  objecting  to  the  jurisdiction  is  not 
such  an  appearance  as  will  confer  jurisdiction."  The  complaint 
should  show,  hj  facts,  properly  pleaded,  that  the  com-t  had  juris- 
diction of  the  subject-matter  of  the  action ;"  but,  on  a  plea  of 

'  2  Crary's  Pr.  485-87.  341,  and  cases  cited  in  note  ;  but  see 

^  Austin  V.  Rawdon,  44  N.  Y.  63.  BurnJiam  v.  Webster, D&yiqs's,  Rep.  241- 

3  Prichard  v.  The  State,  34  Ind.  137.  242. 

*  Graham  v.  Scripture,  2^:,  How.  501 ;  »  NMioll  v.  Mason,  21  Wend.  340; 
but  see  Dean  v.  Eldredge,  29  id.  231 ;  Glapp  v.  Graves,  26  N.  T.  418. 
Lane  v.  Salter,  4  Rob.  241 ;  Prince  v.  '"  Hart    v.    Seixas,    21    Wend.  40 ; 
Cujas,  7  id.  77 ;  Finch  v.  Carpenter,  5  Barnes  v.  Ilarris,  4  N.  Y.  375,  which 
Abb.  225.  gives  the  form  of  a  declaration  held 

^  Graham  v.  Scripture,  26  How.  501.  good  upon  such  a  judgment  in  an  action 

^  Ante,  marg.  p.  271.  commenced  by  summons  ;  and  see  Fos- 

'  Turner  v.  Boby,  3  N.  Y.  193.  ter  v.  Hazen,  12  Barb.  547,  commenced 

*  Turner  v.  Roby,  3  N.  Y.  193 ;  King  by  warrant. 

V.  Poole,  36  Barb.  242 ;   Cumberland,        "  Willi7',s  v.  Wheeler,  8  Abb.  117. 
etc.,  V.  Hoffman,  etc.,  15  Abb.  78,  39        '^  Turner  v.  Boby,  3  N.  Y.  193. 
Barb.  16;  Brockett  v.  Bush,  18  Abb. 


en.  IV  A.]       COMPLAINT   IN   PAETICULAR   CASES.  363 

former  judgment  in  an  inferior  court,  if  the  complaint  show  a 
cause  of  action  of  which  that  court  would  have  had  jurisdiction, 
a  plea  that  plaintiff  impleaded  the  defendant  "  for  the  same  cause 
of  action  mentioned  and  specified  in  the  declaration,"  is  good.' 
In  an  action  upon  a  judgment  of  an  inferior  court,  in  favor  of  a 
plaintiff,  the  complaint  should  allege  that  the  cause  of  action  in 
the  original  suit  arose  within  the  jurisdiction  of  that  court."  In 
an  action  upon  a  foreign  judgment,  even  of  a  superior  court,/ac^s 
must  be  pleaded  which  show  the  court  rightfully  exercised  juris- 
diction.' An  appearance  therein  by  attorney  will  be  ^rima  facie 
sufficient.*  A  foreign  judgment  or  determination  in  bankruptcy 
will  not  confer  such  a  title  to  the  bankrupt's  estate,  upon  a  trustee 
appointed  in  such  proceeding,  as  will  enable  him  to  sustain  an 
action  here  therefor.*  In  an  action  upon  a  foreign  judgment 
against  joint  debtors,  only  one  of  whom  was  served,  even  as 
against  the  defendant  served,  the  complaint  should  allege  that,  by 
the  laws  of  the  State  or  country,  such  judgment  might  prop- 
erly be  entered.* 

Landlord  and  tenant/ —  An  action  for  the  breach  of  a  cove- 
nant upon  the  part  of  a  lessee,  that  he  will  make  repairs  during 
the  term  of  a  lease,  or  that  he  will  not  make  alterations  in  the 
premises  leased,  without  the  consent  of  the  lessor,  may  be  main- 
tained by  the  lessor,  without  awaiting  the  expiration  of  the  term 
of  the  lease;*  and  the  landlord  may,  before  the  expiration  of 
the  term,  recover  of  the  tenant  for  injuring  the  demised  prem- 

*  NicJioll  V.  Mason,  21  Wend.  340.  '  Upon  tlie  subject,  generally,  see 
^  Read  v.  Pope,  1  Cromp.,  Mees.  &    Piatt  on  Leases,  Taylor's  Landlord  and 

Rose.  803,  4  Tyrrwh.  403.  See  4  Conw.  Tenant,  Addison  on  Cont.,  Addison  on 
Rob.  Pr.  Ill,  5  id.  838,  841,  6  id.  431-  Torts,  Bl.  Com.,  Bouv.  Inst.,  Broom's 
441.  For  precedents,  see  Yates's  PI.  Com.,  Broom's  Com.  on  Common  Law, 
285,  299,  1  Humph.  Prec.  683,  688,  1  Chitty  on  Cont.,  Coweu's  Tr.  (Kings- 
Abb.  Forms,  884.  ley's  ed.),  Daniell's  Ch.  Pr.,  Estee's  PI. 
^  Burnham  v.  Webster,  Daveis's  U.  S.  and  Pr.,  Hilliard  on  Torts,  Hilliard's 
Rep.  236,  340, 241,  but  see  3  Conw.  Rob.  Rem.  for  Torts,  Kent's  Com.,  Kerr  on 
Pr.  505-508,  1  id.  317,  6  id.  421,  441.  Inj.,  Kerr  on  Receivers,  Pars,  on  Cont., 
For  precedents,  see  3  Chitty's  PI.  343,  1  Conw.  Rob.  Pr.,  3  id.,  4  id.,  5  id.,  6 
245,  415,  486,  487,  Yates's  PI.  291,  8  id.,  Selw.  N.  P.,  Smith's  Man.  Com. 
Burr.  Pr.  378,  379,  1  Abb.  Forms,  334,  Law,  Smith  on  Cont.,  Steph.  Com., 
335,  3  id.  33,  23.  4  Conw.  Rob.  Pr.  113-  Taylor  on  Ev.,  Tidd's  Pr.,  Tyler  on 
117,  5  id.  838,  841,  G  id.  431,  441.  As  Ejectment,  Wait's  Law  and  Prac, 
to  judgments  rendered  in  Canada,  see  Washb.  on  Real  Estate,  Washb.  on 
Laws  1868,  vol.  3,  p.  1333.  Eas.,  Waterman's  Eden  on  Inj.,  Wil- 

*  Bank  v.  Huntington,  13  Abb.  403.  lard  on  Real  Estate,  Williams  on  Real 

*  Musselmaii  v.  Gaen,  34  Barb.  66.  Prop. 

«  Knapp  V.  Abell,  10  Allen,  485,  488-        *  Webster  v.  Nosser,  3  Abb.  N.  S.  39 
490.  33  How.  136. 


564  COMPLAINT  IN   PARTICULAR  CASES.       [CH.  IV  A. 

ises.*  Where  the  owner  of  a  farm  let  it  to  another,  to  work  on 
shares,  furnishing  certain  stock,  which  was  to  be  kept  thereon,  and 
the  increase  divided,  agreeing  to  deliver  to  the  owner  one-half  of 
the  grain,  potatoes,  etc.,  in  the  half  bushel,  and  one-half  the  butter, 
cheese,  etc.,  together  with  one-half  the  growth  of  stock,  but  noth- 
ing was  said  as  to  the  hay  raised  beyond  what  was  necessary  to 
be  fed  to  the  stock,  held,  it  belonged  to  the  lessee,  and  the  owner, 
having  ousted  him  from  possession  of  the  farm,  was  liable  for 
the  hay  beyond  what  he  properly  fed  to  such  stock."  As  to  the 
hay  which  the  tenant  agreed  to  feed  the  stock,  the  owner  did  not 
render  himself  liable  for  the  conversion  thereof  by  himself  so 
feeding  it.'  A  lessor  has  no  remedy  in  equity  for  the  breach  of  a 
covenant  not  to  under-let.  If  he  has  the  right,  by  the  terms  of  the 
lease,  to  re-enter,  he  must  proceed  at  law  ;  or  he  may  waive  the 
right  to  enter  and  recover  his  damages.  But  the  lessee  or  his 
under-tenant  will  be  restrained  from  using  the  premises  demised 
contrary  to  his  covenant,*  and  a  mere  recital  in  the  lease  of  the 
purposes  for  which  the  premises  are  let  has  been  held  to  constitute  a 
covenant.*  Conceding  one  who  agreed  not  to  under-let  may  take 
boarders,  such  boarders  may  be  restrained  from  carrying  on  any 
business,  such  as  a  dentist,  in  the  house.*  In  ejectment  by  the 
landlord,  on  the  ground  that  the  tenant,  by  under-letting,  has 
forfeited  the  lease,  a  receiver  of  the  rents  and  profits  may  be 
appointed  during  the  litiga  tion,  and  to  prevent  waste  during  the 
remainder  of  the  term.'  A  landlord  is  under  no  obligation  to 
repair  unless  he  stipulate  so  to  do,  and  then  only  after  a  reason- 
able time  after  the  necessity  for  such  repairs  arose ;  *  and  notice 
thereof,"  unless  he  stipulate  in  the  lease  for  the  right  to  enter  at 
all  times  and  make  repairs."  If  there  be  no  stipulation  to  repair 
in  the  lease,  a  subsequent  agreement  to  do  so,  or  to  pay  damages 
sustained  by  the  tenant  from  the  necessity  therefor,  is  without 

'  Ray  V.  Ayers,  5  Duer,494 ;  Provost,  '  Arribler  v.  Skinner,  7  Rob.  561. 

etc.,  V.  Hallett,  14  East.  489.     See  Bag-  '  Ireland  v.  Nichols,  37  How.  232. 

ley  V.  Smitk,  10  N.  Y.  489,  and  Yellowly  ^  Walker  v.  Gilbert,  2  Rob.  214  ;  Sher- 

V.  Gower,  11  Exch.  274,  295,  aud  note  wood  v.  Seaman,  2  Bosw.  127;  Bobbins 

to  Am.  ed.  v.  Mount,  38  How.  24,4  Rob.  561  ;  note 

2  Burdick  v.  WasJiburn,  36  How.  468.  to  Campbell  v.  Wenlock,  4  F.  &  F.  723  ; 

*  Burdickv.  Wa.ihhurn,  36  How.  475 ;  but  see  Johnson  v.  Dixon,  1  Daly,  178. 
Fenninffs  v.  Grenville,  1  Taunt.  241.  ^Mnkin  v.  Wutkinson,  L.  R.,  6  Exch.  25 ; 

*  Gillian  v.  Norton,  33   How.   373;  hut  ^ee  Haydenv.  Bradley, QGT&y,42ii. 
Ambler  v.  Skinner,  7  Rob.  561.  '"  Hayden  v.  Bradley,  G  Gray",  425  ; 

*  Gillian  v.  Norton,  33  How.  373.  Kerr  on  Inj.  86. 


CII.  IV  A.]       COMPLAIIS-T   IN   PAETICULAR  CASES.  365 

consideration  and  void.'  And  the  tenant's  sending  liis  goods  for 
Bale  at  auction,  and  having  them  so  sold  at  the  landlord's  sugges- 
tion, is  not  a  sufficient  consideration  to  uphold  a  promise  to  pay 
the  difference  between  the  invoice  price  and  the  amount  they 
might  bring  at  auction.'' 

If  a  third  person  sustain  damages  by  reason  of  the  non-repair  of 
an  adjoining  house,  as  the  lead  and  gutters,  in  the  occupation  of  a 
tenant,  the  law  presumes  the  tenant  was  bound  to  make  the 
repairs,  and  the  landlord  is  not  liable,^  unless  he  created  or  allowed 
the  state  of  affairs  which  produced  the  injury  before  renting  the 
premises,*  and  not  then  if  the  tenant's  use  is  what  produces  the 
injury.^  Nor  is  the  owner  of  a  ferry  liable  to  one  injured  by  the 
servant  of  one  to  whom  he  has  leased  it.'  If  apartments  in  a  house 
are  rendered  unfit  for  occupancy  by  the  overflow  of  a  privy  the 
tenant  may  leave  tliem,  and  is  not  liable  for  the  rent  thereof;^  other- 
wise as  to  a  tenant  occupying  an  entire  house,  for  it  is  his  duty  to 
empty  the  privy;*  and  so  if  the  trouble  arise  from  something 
which  the  tenant  can  discover  and  remove  by  ordinary  diligence.* 

There  is  no  implied  warranty  on  the  part  of  the  landlord  who 
lets  premises  that  they  are  tenantable,'"  but  if  he  rent  them  know- 
ing that  a  cause  exists  which  renders  them  unfit  for  habitation, 
without  giving  notice  thereof,  he  is  guilty  of  a  fraud,  and  the 
tenant  is  not  bound  to  pay  rent  if  within  a  reasonable  time  after 
the  discovery  of  the  fraud  he  repudiates  the  contract,"  although  he 
enter  under  the  lease.'" 

Letters." —  The  person  receiving  a  letter  has  a  sufficient  prop- 

1  WaUcer  v.  Gilbert,  2  Rob.  214.  ■>  Fash  v.  KmanagTi,  24  How,  347, 

2  Walker  v.  Oilhert,  2  Rob.  222-3.  Laws  1860,  p.  592. 

3  Batterman  v.  Finn,  32  How.  501  ;        «  Fash  v.  Kamnagh,  24  How.  349. 
Kastor  v.  JSTewhouse,  4  E.  D.  Smith,  20  ;        ^  Westlake  v.  Degraic,  25  Wend.  669. 
Richy.Basterfield,4:C.  B.  783,  56  Eng.  "»  Wallace  v.  Lent,  1  Daly,  481,  29 
C.  L.,  5N.  Y.'Leg.  Obs.  463,  reversing  How.  289,  Kerr  on  Frauds,  61  (Eng. 
S,  C,  2  Car  &  Kirw.  257,  61  Eng.  C.  L. ;  ed.). 

RobMns  V.  Mou7it,  33  How.  24,  4  Rob.  "  Wallace  v.  Lent,  1   Daly,  481,  29 

561 ;  and  see  Beg.  v.  Barrett,  9  Cox  How.  289 ;    but  see  Keates  v.  Earl  of 

Cr.  Cases,  255 ;  but,  see  Connavan  v.  Gadogan,  10  C.  B.  591,  70  Eng.  C.  L.,  3 

Conklin,  1  Abb.  N.  S.  271,  1  Daly,  509.  Eng.  Law  and  Eq.  318,  Kerr  on  Frauds, 

*  Waggoner  v.  Jermaine,  3  Den.  306  ;  61  (Eng.  ed.) ;  Milliken  v.  Thorndike, 
explaining  Blunt  v.  Aiken,  15  Wend.  103  Mass.  382. 

524  ;  Bobbins  v.  Mount,  33  How.  24,  4  ,  ^"^ Milliken y.  Thorndike,10ZUt^ssM2. 

Rob.  561  ;  Bellows  v.  Sackett,  15  Barb.  '»  Upon  the  subject,  generally,    see 

96;    Pickard   v.    Collins,    23   id.  445;  2  Story's  Eq.  J ur.  §  944,  Smith's  Man, 

Moody  V.  Mayor,  43  id.  282.  of  Eq.  (1st  Am.  ed.)  421,  Kerr  on  Inj. 

*  Bich  V.  Basterfleld,  supra.  186,  189,  450,  603,  Willard's  Eq.  385, 
«  Norton  v.  Wiswall,  26  Barb.  618.  386,  Waterman's  Eden,  on  Inj.  321  et 


366 


COMPLAINT  IN   PARTICULAE   CASES.       [CH.  IV  A-. 


erty  in  the  paper  upon  M^hicli  it  is  written  to  entitle  him  to  main- 
tain detinue  for  it  against  the  sender,  into  whose  hands  it  has  come 
as  a  bailee.*  The  writer  however  may  restrain  its  publication." 
Letters  not  possessing  literary  value,  although  they  pass  to  the 
personal  representative,  are  not  assets  which  may  be  sold  or 
assigned.     They  pass  to  the  widow  or  next  of  kin.' 

Lien/ — Where  one  was  fraudulently  induced  to  release  a  lien, 
the  purchaser  from  the  person  procuring  it  was  decreed  to  pay  the 
purchase-money,  to  the  extent  of  the  lien,  to  the  incumbrancer;' 
and  so  the  satisfaction  of  a  judgment  fraudulently  procured  will 
be  set  aside  on  a  bill  in  equity,"  and  even  upon  motion.''  The 
vendor  of  real  estate  has  an  equitable  lien  thereon  for  the  pur- 
chase-price ;*  and  so  has  the  purchaser  for  payments  made  where 
the  vendor  refuses  to  or  cannot  perform,'  or  for  money  expended 
in  compliance  with  the  contract,  relying  upon  performance  by  the 


geq..  Add.  on  Torts,  Black's  Com., 
Bouv.  Inst.,  Daniell's  Ch.  Pr.,  Drewry 
on  Inj.  206,  207;  supplement  to  do. 
p.  37,  3  Estee's  PI.  243,  Hilliard  on 
Inj.,  Milliard  on  Torts,  Willard's  Eq. 
Jur.  385, 386, 2  Williams  on  Executors, 
1733. 

1  Oliver  v.  Oliver,  11  C.  B.  N.  S.  103, 
Eng.  C.L.  139. 

^  Eyre  v.  Hlghee,  15  How.  Prac.  45  ; 
Wolsey  V.  Jndd,  4  Duer,  379,  11  How. 
Prac.  49, 2  Story's  Eq.  s^  944  ;  see,  how- 
ever, Uoyt  V.  McKenzie,  3  Barb.  Ch.  120 ; 
Fleming  v.  Newton,  1  H.  L.  Cases,  363 ; 
Glyn  V.  Caulfield,  3  MacN.  &  Gord. 
463. 

3  Eyre  v.  Highee,  22  How.  198. 

*  Adams's  Eq.,  Add.  on  Cont.,  Add. 
on  Torts,  Benj.  on  Sales,  Black's  Com., 
Bouv.  Inst.,  Broom's  Com.  on  Common 
Law,  Chitty  on  Cont.,  Cowen's  Treat. 
(Kingsley's  ed.),  Daniell's  Ch.  Prac, 
Edw.  on  Bailments,  Estee's  PI.  &  Pr., 
Fry  on  Specific  Perf.,  Index  to 
Moak's  notes  to  Clarke's  Ch.,  ed.  1869, 
Hilliard  on  Torts,  Kent's  Cora.,  Kerr 
on  Frauds  (1st  Am.  ed.),  347,  251,  233, 
244,  351,  Pars,  on  Cont.,  4  Conw.  Rob. 
Prac.  305,  6  id.,  Roper  on  Leg.,  Sedgw. 
on  Dam.,  Selwyn's  N.  P.,  Smith's 
Man.  C.  L.,  Smith's  Man.  of  Eq.,  Index 
and,  also,  pp.  65,  226,  178  (1  Am.  ed.). 
Smith  on  Real  &  Pers.  Prop.,  Steph. 
Com.,  Storv's  Eq.  Jur.,  Taylor's  Ev., 
Tidd's  Prac,  Wait's  Law  &  Prac, 
Washb.   on  Real  Property,  Willard's 


Equity,  Willard's  Real  Estate,  Wil- 
liams on  Executors,  Williams  on  Per- 
sonal Property,  Williams  on  Real  Prop- 
erty. 

5  Stebhins  v.  Howell,  34  How.  83,  1 
Keyes,  240 ;  see  Johnson  v.  Crane,  40 
Barb.  78. 

''  Eyre  v.  Burmester,  10  House  of 
Lords  Cases,  90 ;  Warner  v.  Blake- 
man,  36  Barb.  501,  4  Keyes,  487. 

''  Matter  of  Beers,  5  Rob.  643 ;  Acker- 
man  V.  Aokerman,  14  Abb.  229  ;  Ander- 
son V.  Nicholas,  4  Rob.  630  ;  Ferris  v. 
Crawford,  2  Den.  595 ;  In  re  Tresid- 
der.  Law  Rep.  1  Ch.  App.  20 ;  War- 
dell  V.  Eden,  2  Johns.  Cases,  121,  id. 
258 ;  Suydam  v.  Holden,  Seld.  Notes, 
Oct.  1833,  p.  lQ;Taylor  v.  Ranney,  4 
Hill,  619  ;  Martin  v.  Hawks,  15  Johns. 
405  ;  Beehe  v.  Bank,  1  Johns.  529 ;  but, 
see  Timan  v.  Leland,  6  Hill.  237. 

*  Chilton  V.  Braiden,  2  Black,  U.  S. 
458,  Moak's  notes  to  Clarke's  Ch.  275, 
and  cases  cited ;  Coppin  v.  Coppin, 
MacN.'s  Select  Cases,  91,  marg.  p. , 
HoiFman's  note  to  BlackhurnY.  Gregson, 
1  Cox  Ch.  91 ;  Whitlock  v.  Lysaght,  1 
Sim.  &  Stu.  446,  and  Dunlop's  note  to 
Banks's  ed. ;  same  to  Selby  v.  Selby,  4 
Russ.  341  ;  see  Hulett  v.  Whipple,  58 
Barb.  227. 

'  Rose  v.  Watson,  10  House  of  Lords 
Cases,  672 ;  Mclndoe  v.  Merman,  26 
Wise  588. 


CH.  IV  A.]       COMPLAINT  IIS"  PARTICULAE   CASES.  367 

vendor.'  An  agreement  that  a  mortgage  shall  have  priority  over 
one  already  recorded  is  good  and  will  be  enforced  in  equity."  A 
constable  who  levies  upon  the  interest  of  the  judgment  debtor,  in 
property  legally  held  by  a  third  person  by  virtue  of  an  existing 
lien,  is  liable  in  trespass  if  he  removes  such  property  from  his 
possession.'  By  statute  a  lien  in  favor  of  any  innkeeper,  board- 
ing-house keeper,  mechanic,  workman,  or  bailee  may  be  enforced 
and  foreclosed  in  any  court  having'  jurisdiction  of  the  amount  of 
such  lien.* 

Libel.^  —  A  corporation  may  maintain  an  action  for  a  libel  affect- 
ing its  business  and  credit ;'  and  so  an  author  whose  work  has  been 
unjustly  and  maliciously  criticized  f  but  he  must  allege  and  prove 
special  damage.*  So  the  action  lies  for  a  portion  of  a  letter,  although 
another  portion  may  be  privileged.'  So  for  a  letter  insinuating  that 
the  plaintiff  had  stolen  growing  flowers  ;'"  for  insinuating  that  the 
plaintiff  had  sent  a  threatening  letter  ;*'  and  for  insinuating  that 
plaintiff's  place  of  business  was  not  respectable  ;^'  for  falsely  pub- 
lishing plaintiff's  marriage  to  a  prostitute;  but  the  complaint  must 
allege  that  defendant  knew  its  falsity  ;**  and  so  of  any  libel  not  such 
upon  its  face,  but  rendered  so  by  extrinsic  circumstances  or  facts.'* 
And  where  tlie  publication  is  not  libelous  jper  se^  the  plaintiff 
must  allege  special  damages.'^  An  action  will  not  lie  against  a 
member  of  a  court  martini  for  censuring  the  conduct  of  one  tried 
before  the  court,  in  a  finding  which  honorably  acquits  him,  for 

^  Moak's  notes  to  Clarke's  Cli.  350,  '  Charles  lieade  v.  Swertzer,  6  Abb. 

marg.  p.,  and   cases  cited;  Savage  v.  N.  S.  9,  note;  for  criticizing  "Griffith 

Taylor,  T a.Vo.  He]}.  2?A;  Kanawha, etc.,  Gaunt;"  an  interesting  case,  wherein 

V.  KanawJia,  etc.,  7  Blatchf.  421.  the  origin  of  many  of  the  characters 

°  Freeman  v.   Schroedcr,    29    How.  is  shown,  and  resulting  in  a  verdict  of 

263,  43  Barb.  618.  six  cents  only. 

*  Truslow  V.  Putnam,  1  Keves,  568.  *  Swan  v.  Tappan,  5  Cush.  104 ;  Gold- 

*  Laws  1869,  vol.  2,  p.  1786,  7  Edm.  well  v.  Raymond,  2  Abb.  197. 

Stat.  469.  ^  Warren  v.  Warren,!  Cromp.,Meea. 

^  Upon  the   subject,  generally,  see  and  Rose.  250. 
Townsend's  Libel  &  Slander,  Starkie's        '"  Gardner  v.    Williams,  2   Cromp., 

Libel   &   Slander,   Addison   on  Torts,  Mees.  and  Rose.  78,  affirmed,  1  Mees. 

Bl.  Com.,  Bouv.  Inst.,  Broom's  Com.,  and  Welsh.  245. 

Broom's  Com.  on  Common  Law,  Chitty        "  Ilarvey  v.  French,  1  Cromp.  and 

onPl.,Estee'sPl.,Greenl.Ev.,Hilliard  Mees.  11. 

on  Torts,  Hilliard  on  Rem.  for  Torts,        '^  Barrett  v.  Long,  3  Hou.se  of  Lords 

Kent's  Com.,  2  Conw.  Rob.  Pr.,  4  id.,  6  Cases,  395. 

id.,  Sedg.  on  Dam.,  Selw.  N.  P.,  Smith's  '^  Caldwell  v.  Baymond,  2  Abb.  193. 
Man.  C.  L.,  Steph.  Com.,  Taylor's  Ev.,  "  Caldwell  v.  Baymond,  2  Abb.  197. 
Tidd's  Pr.  '^  Caldwell  v.  Baymond,  2  Ahb.  197 

*  Knirl.-erhocTccr  Life,  etc.,y.  Ecdesine, 
6  Abb.  N.  S.  9. 


368  co:\rPLAiNT  ix  paPwTicular  cases,     [ch.  iva. 

the  sentence,  althougli  read  to  every  regiment  in  the  service,  i^i 
privileged.' 

Light."  —  The  owner  of  adjoining  premises  may,  "by  building  a 
high  fence,  exclude  the  light  from  his  neighbor's  premises.^ 

Lost  bill  of  exchange  or  note."  —  In  an  action  upon  a  lost 
note  it  is  not  necessary  to  allege  a  tender  of  the  bond  of  indem- 
nity required  by  statute,  as  such  a  tender  at  the  trial  is  sufficient,* 
but  in  a  case  not  provided  for  by  statute,  where  the  suit  must 
be  brought  on  the  equity  side  of  the  court,  such  indemnity  must 
be  tendered  before  suit,  and  the  tender  averred  so  that  issue  can 
be  taken  thereon,'  or  the  bill  in  equity  must  offer  to  give  such 
indemnity  as  the  court  shall  direct.^  No  indemnity  need  be  ten- 
dered or  offered  by  the  bill  where  the  lost  instrument  is  not 
negotiable,  as,  for  instance,  a  policy  of  insurance.*  A  note  which 
has  been  accidentally  destroyed  is  not  a  lost  note,  and  plaintiff 
may  recover  thereon  without  indemnifying  the  maker  against  the 
same.*  But  the  evidence  should  satisfy  the  jury  beyond  a  reason- 
able  doubt  of  its  destruction.'"  An  action  at  law,  independent  of 
a  statutory  provision,  will  not  lie  on  a  lost  note ;  but  if,  at  the 
time  of  the  trial,  a  recovery  upon  the  lost  note  would  be  barred 
by  the  statute  of  limitations,  the  action  may  be  sustained.'" 

A  note  which  is  out  of  the  State,  in  the  hands  of  a  wrong-doer, 
cannot  be  recovered  upon  as  a  lost  note  either  at  law  or  in  equity ; " 

'  Jekyll  V.  Sir  John  Moore,  6  Esp.  Selw.  N.  P.,  Smith's  Man.  Com.  Law, 

N.  P.  63.  Smith's  Man.  Eq.,  Steph.  Com.,  Story's 

2  Upon   the   subject,  generally,  see  Eq.  Jur.,  Tayl.  on  Ev.  (6th  ed.),  435, 
Addison  on  Torts,  Bl.  Com.,  Bouv.  Inst.,  §  407. 

Broom's  Com.,  Broom's  Com.  on  Com.  *  Brookman  v.  Metcalf,  4  Rob.  568, 

Law,   Cowen's    Tr.    (Kingsley's    ed.),  34  How.  568 ;  Desmond  v.  Rice,  1  Hilt. 

Daniell's  Ch.  Pr.,  Hilliard  on  Torts,  530. 

Kerr  on  Inj.,  Kerr  on  Frauds  (1st  Am.  '  The  Conflans.  etc.,  v.  Parker,  L.  R. 

ed.),  350,  2  Conw.  Rob.  Pr.,  4  id.,  6  id.,  3  C.  P.  1  ;  Aranguren  v.  Scolfield,  1 

Selw.  N.  P.,  Smith  s  Man.  C.  L.,  Steph.  Hurl.  &  Norm.  494,  Adams's  Eq.  167, 

Com.,  Washb.  Eas.,  Waslib.  Real  Prop.,  108,  marg.  p. 

Wat.  Eden  on  Inj.,  Willard  on  Real  '1   Story's  Eq.,  §§  81-88;    Smith's 

Estate,  Williams  on  Real  Property.  Man.  of  Eq.  (1st  Am.' ed.) 40-42;  Adams' 

3  Pickard  v.  Collins,  23  Barb.  444  ;  Eq.,  167-68,  marg  p. 

McKeon  v.  See,  4  Rob.  467.  »  England  v.  Lord  Tredegar,  L.  R.,  1 

*  See  Cow.   Treat.  (Kingslev's  ed.),  Eq.  344. 

g§  400-408,  1378,  1  Wait's  Law  &  Pr.,  ^  Des  Arts  v.  Leggett,  16  N.  T.  582, 

432-36,  Edw.  on  Prom.  Notes,   Story  588 ;  Pierson  v.  Hutchinson,  2  Camp, 

on  Prom.  Notes,  Pars,  on  Bills,  Story  211  ;  Moses  v.  Trice,  21  Gratt.  556. 

on  Bills,  Adams's  Eq.,  Add.  on  Cont.,  '"  Moses  v.  Trice,  21  Gratt.  556. 

814,  Broom's  Com.  on  Com.  Law,  494,  "  Van  Alstyne  v.  Nat.  Com.  Bank  7 

Daniell's  Ch.  Pr.,  Estee's  PI.,  Kent's  Trans.  App.  241 ;  McEwen  v.  The  Earl, 

Com.,  2  Conw.  Rob.  Prac,  5  id.,  6  id.,  etc.,  6  Irish  Law  Rep.  144. 


CII.   rv  A.]       COMPLAINT  IN   PARTICULAE   CASES.  369 

otherwise,  if  it  be  deposited  in  the  hands  of  a  third  person  by  an 
arrangement  between  the  parties  and  be  produced  by  him  crn  the 
trial/  It  is  not  necessary  to  allege  the  loss  in  the  complaint.' 
The  remedy  to  recover  for  bank  bills  which  were  lost  by  the 
sinking  of  a  ship  is  in  equity,  for  they  may  possibly  be  recovered.* 
A  negotiable  instrument,  lost  after  suit  brought,  may  be  recovered 
U2)on  on  tender  of  indemnity  at  the  trial." 

The  indorsee  of  a  bill  of  exchange,  which  has  been  lost,  has  a 
remedy  against  the  acceptor  by  a  bill  in  equity  to  compel  pay- 
ment, notwithstanding  he  might  have  recovered  on  the  bill  at 
law,  his  equity  being  founded  in  a  court  of  law  to  impose  terms 
on  the  plaintiif  of  giving  the  defendant  security  against  the  forth- 
coming of  the  bill,  which  would  have  been  good  ground  ibr  an 
injunction  to  restrain  such  action.  The  drawer  is  not  a  necessary 
party."  Another  distinction  in  the  case  of  a  lost  bill  or  note  is, 
that  where  it  is  payable  to  bearer  or  to  order,  and  indorsed  generally, 
the  plaintiif  cannot,  independent  of  a  statute,  recover  at  law,* 
while,  if  indorsed  specially,  he  may.' 

Malicious  prosecution/ — A  complaint  which  only  alleges 
that  defendants  maliciously,  and  with  intent  to  injure  the  plaintiff, 
illegally  and  without  warrant  arrested,  and  by  force  compelled 
her  to  go  to  a  police  station,  and  there  restrained  her  of  her 
liberty,  is  for  false  imprisonment  and  not  for  malicious  prosecu- 
tion.' An  averment  of  want  of  probable  cause  in  a  complaint 
for  malicious  prosecution  is  indispensable ;  an  allegation  that  the 
charge  was  false  is  not,  nor  is  one  that  it  was  maliciously  made, 
sufficient."  Good  faith,  however,  is  not  sufficient.  There  must 
be  reasonable  ground  for  suspicion,  supported  by  circumstances 
sufficiently  strong  in  themselves,  to  warrant  a  cautious  man  in  the 

^  Selden  v.   Pringle,  17  Barb.  458,  '  Long  v.  Bailie,  2  Camp.  214,  note, 

408.  and  note  to  Wils.  Exch.  113. 

'^  Board,  etc.,  v.  Wliite,  30  Barb.  72.  ^  Upon  the   subject,  generally,   see 

=*  Harris  v.  Moody,  4  Bosw.  224.  Add.  on  Torts,  Black.  Com.,  Bouv.  Inst., 

■*  Jacks  V.  Darriii,  1  Abb.  148,  3  E.  Broom's  Com.,  Broom's  Com.  on  Com. 

D.  Smith,  548 ;  overruling  the  dictum  Law,  Chitty's  PL,  Estee's  PL,  Greenl. 

in  2  Cow.  Tr.  (2d  ed.)  184  and  see  Jacks  Ev.,   Hill,   on   Torts,   Hill.   Rem.    for 

V.  Darrin,  3  E.  D.  Smith,  557.  Torts,  2  Couw.   Rob.  Pr.,  4  id.,  fi  id., 

5  Davies  v.  Dodd,  4  Price,  176,  Wils.  Sedgw.  Dam.,  Sel  w.  N.  P.,  Smith's  Com. 

Exch.   110;    see,  also,    Walmesley    v.  Law,  Steph.Com.,  TayL  Ev.,Tidd's  Pr. 

Child,  1  Ves.  341 ;  Toulmin  v.  Price,  »  Banifs  v.   Urben,   1   Rob.   555,   26 

5  id.  235 ;  Ex  parte  Greenway,  6  id.  812.  How.  273,  40  N.  Y.  463. 

8  Ex  parte   Greenway,  G   Ves.   812,  "•  Giwu  v.  Webb,  7  Rob.  65. 
note  to  Wils.  Exch.  112. 

47 


370  COMPLAINT  IN  PARTICULAR   CASES.       [CH.  IV  A. 

belief  that  the  plaintiff  was  guilty.'  Belief,  and  reasonable 
grounds  for  belief,  are  both  essential.' 

Where,  after  suit  but  before  judgment,  defendant  paid  a  part 
of  the  claim,  but  plaintiff  nevertheless  signed  judgment  for  the 
full  claim,  issued  a  ca  sa  therefor,  caused  the  defendant  therein  to 
be  arrested  and  compelled  to  pay  the  full  amount,  held,  the 
action  would  not  lie  while  the  judgment  stood  for  the  full 
amount/  He  should  have  moved  to  set  aside  the  judgment  or 
to  set  aside  the  execution  on  payment  of  the  sum  actually  unpaid  ;* 
although  a  party  is  liable  for  maliciously  causing  another  to  be 
arrested  for  too  large  a  sum  upon  mesne  process."  And  ff  a  pay- 
ment be  made  after  judgment  and  execution  be  issued,  without 
deducting  it,  the  action  will  lie.^  The  complaint  must  allege 
that  the  prosecution  was  instituted  maliciously  and  without  prob- 
able cause,  and  was  terminated  in  favor  of  the  plaintiff,  even 
though  the  party  be  summarily  convicted  under  a  statute  giving 
no  power  to  appeal.'  It  is  doubtful  whether  the  entry  of  a  com- 
mon-law nolle  ])ro8e<iui,  which  could  be  entered  by  the  j)rosecuting 
officer  without  the  sanction  of  the  court,  is  a  sufficient  termina- 
tion ;  ^  but,  under  the  statutes  of  New  York,  providing  a  nolle 
prosequi  shall  not  be  entered  without  leave  of  the  court,*  one 
thus  entered  is  sufficient ;  *  but  the  mere  discharge  of  the  defend- 
ant from  his  recognizance  is  not  a  sufficient  termination."  Where 
judgment  is  procured  without  personal  service,  so  that  the  party 
has  no  opportunity  to  be  heard,  it  is  not  a  bar  to  the  action  if 
reversed  on  appeal ;"  nor  is  a  judgment  fraudulently  procured  by 
means  which  prevented  the  plaintiff  from  setting  up  his  defense." 

It  has  been  doubted  whetlier  the  action  will  lie  against  a  cor- 

*  Shafer  v.  Loucks,  58  Barb.  426.  »  Hibbard  v.  Rohison,  MS.,   Gen.  T., 

*  Iliiffer  V.  Allen,  L.  R.,  2  Exch.  15.     4tli  dist.,  Oct.  1870,  at  Canton,  1  Abb. 
»  Hvffer  V.  Allen,  L.  R.,  2  Exch.  15  ;     Forms,  486-89  ;  Clark  v.   Cleveland,  6 

ffo'h/es  V.  Cfdlaghan,  2  C.  B   N.  S.  306,  Hill,  344 ;  Fay  v.  0  'Neill,  30  N.  Y.  13. 

89  Eng.  C.  L.  '"  Bacon  v.  Towns6nd,2  Code  Hep.  51  ; 

*  Brown  v.  Mclntyre,  43  Barb.  344.  Ila.upt  v.  Pohlman,  16    Abb.  303,  1 
6  nUdinfi  V.  Eyre,  10  C.  B.  N.  S.  592,  Rob.  121. 

100  Enj?.  C.  L.  "  Burt  v.  Place,  4  Wend.  591  ;  but 

«  Basebe  v.  Matthewx,  L.  R.,  2  C.  P.  see  Palmer  v.  Avery,  41  Barb.   290 ; 

684  ;  Dennehey  v   Woodsitm,  100  Mass.  Dennehey  v.  Woodsum,  100  Mass.  195. 

195.  '*  Miller  v.  Deere,  2  Abb.  1  ;  Palmer 

'  Brown  v.  Lakeman,  12  Cash.  483,  v.  Avery,  41  Barb.  290 ;  see,  also,  38 

6  Hill.  .347.  note,  25  Wend.  572.  Me.  523";  but  see  Dennehey  v.  Woodsum, 

«  2    R.  S.  728,  §  54  ;   2  Edm.   Stat.  100  Mass.  195. 

752. 


CH.  IV  A.J       COMPLAINT   IN   PARTICULAE   CASES.  371 

poration/  but  we  think  it  will.'  In  an  action  against  an  attorney 
for  malicious  prosecution  it  must  be  averred  that  his  client  had 
no  jnst  demand,  that  he  knew  that  fact,  and  that  he  applied  the 
law  for  some  purpose  of  his  own,  or  for  some  other  ill  purpose, 
although  it  is  not  necessary  to  aver  or  prove  malice  in  the  ordi- 
nary sense  of  the  term ;  any  improper  or  sinister  motive  will  be 
sufficient.'  An  infant  is  not  liable  for  a  malicious  prosecution 
instituted  by  his  guardian.* 

Married  woman/ —  A  married  woman  who  signs  a  promis- 
sory note  as  surety  for  her  husband,  and  by  its  terms  expressly 
cliarges  her  separate  estate  with  the  payment  thereof,  is  liable 
thereon,'  but  parol  evidence  of  an  agreement  to  charge  her 
separate  estate  is  not  admissible  to  vary  or  add  to  an  ordinary 
note  signed  by  a  married  woman.'  It  has  been  held,*  that  the 
judgment  against  a  married  woman  may  be  in  the  ordinary  form 
for  a  certain  sum  of  money,  and  that  the  complaint  need  not  allege 
that  she  is  a  married  woman,*  or  has  separate  property,*  but  we 
think  the  better  practice  is '°  to  allege  that  she  was  a  married  woman 
when  she  executed  the  agreement,  and  to  pray  judgment  in  the 
language  of  the  execution  authorized  "  to  be  levied  and  collected 
against  her  from  her  separate  property,  and  not  otherwise. 

A  married  woman  does  not  bind  herself  by  an  agreement  to 
pay  for  nursing  and  taking  care  of  a  sick  parent  unless  she 
expressly  agree  to  charge  her  separate  estate.'"  But  in  Massa- 
chusetts it  has  been  held  she  is  liable  for  a  coffin  for  her  pauper 
father,  for  which  she  agreed  to  pay.'^  Kor  is  she  liable  for  prop- 
erty fraudulently  purchased  by  her  husband,  although  it  be  used 
in  building  a  house  upon  her  real  estate,'*  unless  being  aware 

•  Stemm  v.  Midland,  etc.,  10  Excli.        '  Yale  v.  Dedern,  22  N.  Y.  450,  18 

351.  id.  265  ;   Willard  v.  Eastham,  15  Gray, 

2  Townsend's  Slander  &  Libel,  §  265,  328  ;  .Bibh  v.  Pope,  8  Am.  L.  Reg.  N.  S. 
Au,<?.  &  Ames  Corp.,  i^i^  382, 387  ;  Whit-  490,  Supreme  Court  Alabama. 

-field  V.  South  Eastern,  etc.,  1  Ell.  Bl.  «  Go7'n   Exch.  Bank  v.   Ba^cock,  42 

&  Ellis,  115,  96  Eng.  C.  L.  N.  Y.  613. 

3  Stoekley  v.  Hornidge,  8  C.  &  P.  11,  »  Hudson  v.  Huyler,  6  Abb.  N".  8. 
34  Eng.  C.  L.  288  ;  and  see  Hubert  v.  Fera,  99  Mass. 

■*  Barnham  v.  Seaverns,  101   Mass.  198. 

360.  10  Baldioin  v.  Eimmel,  1  Rob.  109, 

5  See,  ante,  Husband  and  Wife,  and  "  Code,  ij  287. 

references  there  given.  '^  MnncJhcster  v.  Sahler,  47  Barb.  155. 

«  Cum   Exch.  Bank   v.  Bahcock,    42  ^^  Qordon  v.  Dix,  106  Mass.  305. 

N.   Y.   613,    reversing    8    Abb.    24G  ;  "  Corning  v.  Lewis,  36  How.  425,  54 

Cheeoer  v.  WiUon,  9  Wallace,  108.  Barb.  51. 


372  COMPLAINT   IX   I^VRTICULAE   CASES.       [CII.  IV  A. 

that  it  was  purchased  by  the  husband  under  a  representation 
that  lie  owned  the  real  estate  she  promise  to  pay ; '  but  she 
is  liable  for  the  fraud  of  her  husband  if  he  be  acting  as  her 
agent,  professedly  in  her  behalf,  though  she  do  not  know  of  the 
fraud,  if  she  retain  its  proceeds.''  A  complaint  against  a  married 
woman  to  recover  for  services  rendered  in  her  separate  business 
must  allege  that  such  business  was  carried  on  in  this  State  or  in  some 
State  havins  a  similar  law.'  The  executors  of  a  married  woman 
having  a  life  estate  in  premises  are  not  liable  upon  her  covenants 
for  quiet  enjoyment  for  ten  years,  she  dying  before  that  time." 

A  married  woman  is  not  liable  for  a  supper  ordered  for  a 
daughter  about  to  be  married  although  she  expressly  agree  to  pay 
for  it.^ 

A  complaint  which  seeks  to  charge  a  married  woman,  under 
the  statute,  on  a  debt  contracted  by  her  as  agent  for  her  husband, 
for  articles  for  the  support  of  herself  and  children,  is  not  good  if 
it  charge  them  to  have  been  procured  for  herself  and  family,  and 
the  action  should  be  against  the  wife  only.'  And,  it  seems,  the 
complaint  should  aver  that  judgment  has  been  obtained  against 
the  husband,  and  could  not  be  collected  by  due  course  of  law.^ 

A  married  woman  is  liable  for  negligence  by  her  servant  em- 
ployed in  her  separate  business.*  So  for  the  payment  of  the 
amount  due  upon  a  mortgage  on  property  purchased  by  her,  which 
she  assumed  to  pay  as  a  part  of  the  purchase-money,*  and  for  the 
rent  of  a  store  hired  by  her,'°  she  being,  it  seems,  estopped  by  her 
assertion  that  she  hired  it  for  her  separate  business."  A  married 
woman,  having  a  contingent  right  of  dower,  can  recover  the 
amount  a  mortgagee  promises  to  pay  her,  provided  she  would 

'  Mnttice   v.   Lillie,   24  How.    264 ;  ■"  Valentine  v.  Lloyd,  4  Abb.  N.  S. 

Corning  v.  Leiois,  '66  \d.  430  ;  but  see  373.     See  Smith  v.  Allen,  1  Lans.  101 ; 

Fairbanks  v.  Mothersell,  41  id.  274.  Laharee  v.  Golhy,  99  Mass.  559. 

«  Gravex  v.  Spier,  58  Barb.  349.  «  Gillies  v.  Lent,  2  Abb.  N.  S.  455. 

3  Arnold  v.  Bernard,  8  Abb.  N.  S.  ^  Flinn  v.   Powers,    36    How.    289, 

116;   Waldron  v.  Ritchings,  9  id.  359.  Moak's  note  to  Clarke's  Cli.,  p.  400,  ed. 

*  Coakley  v.  Chamberlain,  38  How.  1869. 

483,  but  see  cases  cited  iu  Moak's  notes  '"  Coster  v.  Isaacs,  1  Rob.  176. 

to  Clarke's  Ch.,  p.  400,  ed.  18G9.  "  Coster  v.  Isaacs,  1  Rob.  176,  but  see 

'  White  V.  Story,  43   Barb.   124,  28  note  to  Wright  v.  Leonard,  11  C.   B. 

How.   173 ;    Manchester  v.  Sahler,  47  N.  S.  269,  103,  Eng.   C.  L. ;  Holling- 

Barb.  155.  dale  v.   Lloyd,  3  Mees.  &  Wels   416  ; 

«  Valentine  v.  Lloyd,  4  Abb.  N.  S.  Goulding  v.  Davidson,  26  N.  Y.  604,  25 

371,  and  see  Smith  v.  Allen,  1  Lans.  How.  483. 
101 ;  Labaree  v.  Colby,  99  Mass.  559. 


en.  IV  A.]     coMPLAiisrT  iisr  paeticular  cases.  373 

leave  the  premises,  her  husband  having  absconded.*  A  married 
woman  is  liable  for  converting  to  her  own  use  wearing  apparel 
stolen  from  the  plaintiff,  and  sold  and  delivered  to  her  by  the 
thief,  in  her  husband's  absence." 

Marslialing  assets.*  —  Where  a  partner  mortgaged  his  indi- 
vidual property  to  secure  a  firm  debt,  and,  after  devising  the  mort- 
gaged property,  died,  held,  the  firm  assets  were  primarily  liable  to 
satisfy  the  mortgage,  notwithstanding  the  statute,  which  declares 
that  if  property  subject  to  mortgage  be  devised,  the  devisee,  and 
not  the  executor,  shall  pay  the  same.*  The  owner  of  property 
cannot,  after  conveying  it  even  to  a  volunteer,  subject  it  to  the 
burden  of  marshaling  for  the  benefit  of  other  real  estate  subse- 
quently convej'-ed ;'  nor  will  the  court  marshal  assets  in  favor  of 
a  bequest  for  charitable  purposes.* 

Master  and  servant.'  —  An  undertaker,  employed  to  furnish 
carriages  for  a  funeral,  is  not  liable  for  the  negligence  of  the 
driver  of  a  carriage  hired  by  him.*  A  master  is  not  liable  to  his 
servant  for  injuries  sustained  by  the  latter  while  using  machinery, 
by  reason  of  its  imperfect  construction,  in  the  employ  of  the  for- 
mer, where  the  servant  had  the  same  means  of  knowledge  of  its 
safety  as  the  master,  and  nothing  occurred  at  or  before  the  acci- 
dent to  indicate  any  such  damages,  such  as  demanded  or  suggested 
precautions  which  were  omitted  f  but  he  is  liable  for  defects  in 
the  building  in  which  the  services  are  rendered,  which  he  knew 

^  Hm't  V.  Young,  1  Lans.  417.  ^  Dolphin  v.  Aylward,  L.  R.,  4  11.  L. 

=  Heckle  v.  Ltirmy,  101  Mass.  344.  501-3. 

*  Upon  the  subject,  generally,  see  ^  FoyY.Foy,lCo's.'sGh..lQZ;  West's 
1  Story's  Jar.,  §§  033-645 ;  Willard's  notes  to  Attorney-Oeneral  v.  Moor, 
Eq.  Jur.,   Smith's  Man.  Eq.  384,  291,  West's  Rep.  105  n. 

355  (1st  Am.  ed.),  Adams's  Eq.  271-7,        '•  Upon   the   subject,  generally,  see 

marg.  pp.  ;  Eq.  Draftsman,  213,  note  ;  Selw.  Nisi  Prius,  Smith's   Mast,  and 

Lloyd  &  Gould,  206-8,  note,  Banks's  Serv.,  Reeve's  Dom.  Rel.,  Addison  on 

ed. ;  Kerr  on  Inj.  69,  70  ;  Eng.  ed.  Mac  Cont.,  Addison  on  Tqrts,  Austin's  Jur., 

Naughten's  Select  Cases,  89,  OTa?'5'.  p.  ,•  Bl.  Com.,  Bouv.  Inst.,  Broom's  Com., 

Williams's  note  to  Morris  v.  Bank  of  Broom's  Com.  on  Com.  liaw,  Chitty  on 

England,  Talb.  Rep.  220 ;  West's  note  Cont.,    Cowen's    Tr.   (Kingsley's   ed.), 

to  Attorney-General  v.  Moore,  West's  Estee's  PI.,  Hilliard  on  Torts,  Hilliard 

Rep.  105  ;    Dunlap's  note   to  Marquis  on    Remedy  for   Torts,  Kent's   Com., 

V.   Cunningham,  2  Russ.  300,  Banks's  Noyes's  Max.  109-111   (Munsell's  ed.), 

ed. ;  Patterson  v.  Scott,  1  De  Gex,  McN.  Parsons  on  Cont.,  1  Conw.  Rob.  Pr.,  3 

&  Gord.  531 ;  Moak's  notes  to  Clarke's  id.,  4  id.,  5  id.,  6  id.,  Sedg.  Dam.,  Shear. 

Ch.  7,  202,  ed.  1869  ;  Hilliard  on  Inj.,  &   Redf.    Neg.,    Smith's    Man.    C.   L., 

1  Conw.  Rob.  Pr.,  4  Steph.    Cotu.  42,  Steph.  Com.,  Wait's  Law  and  Pr. 
uote  ;  Wat.  Eden  on  Inj.  "  jloniface  v.  Rclyea,  36  How.  457. 

*  Bohinsoa  v.  RoUnson,  1  Lans.  117.        '  Looiiam  v.  L'rockicay,  3  Rob.  74,28 

How.  472. 


374  COMPLAIi^T  I]^   PARTICULAE   CASES.       [CH.  IV  A. 

or  ought  to  have  known  ;*  so  for  not  providing  stops  in  a  mine; 
in  consequence  of  which  a  miner  is  killed  f  so  for  negligently 
allowing  a  wheel  to  be  started,  whereby  a  workman  is  injured.^ 

A  master  is  liable  for  injuries  to  employees  arising  from  per- 
sonal neglect  or  from  the  want  of  ordinary  care  and  precaution 
on  the  part  of  the  master  in  the  selection  of  employees,  appliances 
and  machinery  ;*  otherwise  as  to  the  ordinary  risks  of  the  business 
the  servant  engages  in.^  "When  the  statute  requires  machinery 
to  be  fenced,  and,  while  it  is  so  protected,  a  servant  enters  the 
employment  of  a  master,  who  suffers  it  to  go  to  decay,  after  com- 
plaint bj  the  servant,  and  promise  to  repair  it,  the  master  is  liable.* 
A  master  is  liable  for  the  act  of  his  servant  —  an  omnibus  driver 
■ — in  driving  an  omnibus  across  the  street,  to  prevent  another 
from  passing,  although  he  have  been  expressly  instructed  not  to 
do  so/  One  who  lends  another  a  shed,  to  paint  a  sign  in,  cannot 
recover  if  a  carpenter,  employed  by  the  bailee,  light  his  pipe  and 
throw  the  match  into  a  pile  of  shavings,  whereby  the  shed  is 
burned.*  Some  bales  of  cotton  were  insecurely  piled  in  a  ware- 
house by  cotton-porters,  acting  under  the  control  of  the  warehouse 
keeper,  but  in  the  employ  of  defendant,  a  cotton  merchant,  to 
whom  the  bales  belonged.  A  few  days  after,  plaintiff,  being  in 
the  warehouse  to  examine  other  bales,  was  injured  by  the  fall  of 
one  of  defendant's  bales.  Held,  he  was  not  liable  for  the  injury.' 
One  who  erects  a  building  by  contract,  and  employs  a  clerk  of  the 
works  to  superintend  the  erection,  is  not  liable  for  injury  occas- 
ioned to  a  workman  in  the  building,  by  reason  of  its  negligent 
construction,  unless  he  personally  interfered  or  negligently  ap- 
pointed an  incompetent  clerk  of  the  works,  with  knowledge  of 
his  incompetency.'"  If  a  ship  is  proceeding  to  sea  under  charge 
of  a  pilot,  the  owners,  in  order  to  exonerate  themselves  from  liability 
for  an  injury  to  another  vessel,  must  show  that  it  was  occasioned 

'  Ryan  v.  Fowler,  24  N.  Y.  410.  «  Jlolme.-*  v.  Clarke,  6  Hurl.  &  Norm, 

»  Watling  v.  Oastler,  L.  R.,  6  Exch.  349,  2  Am.  Law  Reg.  N.  S.  107. 

73.  '  Limjius  v.  London,  etc.,  1  Hurl.  & 

3  Watling  v.  Oastler,  L.  R.,  6  Excli.  Colt.  526. 

73.  *  Williams  v.  Jones,  3  Hurl.  &  Colt. 

•*  Faulkner  v.   Erie,  49   Barb.  327 ;  25(5,  002. 

Anderson  v.  N.  J.,  etc.,  7  Rob.  611.   See  »  Murphy  v.  CarralU,  3  Hurl.  &  Colt, 

note,  3  Am.  Rep.  147.  462. 

=  Owen  V.  iV".    T.,  etc.,  1  Lans.  108.  '"  Brown  v.  The  Accrington,  etc.,  S 

See  note,  3  Am,  Rep.  147.  Hurl.  &  Colt.  511. 


en.  IV  A.]       COMPLAINT   IIS  PAKTICULAK  CASES.  375 

exclicswehj  by  the  pilot's  default.'  If  a  servant  does,  without 
special  orders,  an  act  of  such  a  nature  that  he  is  justified  iu  doing 
it,  as  between  him  and  his  master,  without  an  express  order,  the 
master  is  liable  for  damages  sustained  by  an  individual,  in  con- 
sequence of  the  act  having  been  done  in  an  unskillful  manner  —  as 
in  taking  down  a  liberty  pole  in  a  public  park.^  One  is  not 
liable  for  his  servant  or  child  setting  a  dog  on  cattle,  though  stand- 
ing by,  if  he  immediately  recall  the  dog ;'  nor  is  a  parent  liable 
for  the  act  of  a  child  in  so  doing."  The  owner  of  a  steamboat  is 
not  liable  for  the  willful  act  of  the  master  in  running  her  against 
and  injuring  another  boat  ;^  nor  is  a  master  liable  for  the  Mdllful 
and  malicious  act  of  his  servant  while  in  his  employment,  such  as 
shooting  another,  attempting  to  take  possession  of  the  master's 
premises.*  A  master  is,  however,  liable  for  the  willful  act  of  a 
servant,  if  within  the  scope  of  his  authority.''  If  one  servant, 
contrary  to  orders,  leave  a  truck  standing  in  the  street,  which  is 
run  against  by  another  cartman  and  thrown  against  a  passer-by, 
he  may  recover  against  the  owner  of  the  truck  so  left.*  One 
whose  servant  carelessly  throws  a  keg  out  of  a  window,  so  that  it 
injures  a  person  in  a  passage-way  below,  is  liable  for  such  injury, 
even  if  his  title  in  the  way  is  such  as  not  to  render  him  respon- 
sible for  any  defect  therein,  and  he  may  at  any  time  revoke  the 
permission  by  which  the  person  injured  is  passing  over  it  ;*  or  for 
throwing  ice  from  a  roof."  The  servant  of  one  of  two  railroad 
companies  using  the  same  depot  may  recover  of  the  other  for 
negligence  of  its  servants ;"  but  a  servant  of  a  sub-contractor  is  a 
co-servant  with  a  servant  of  the  principal  contractor.**  The  rule 
that  a  master  is  not  liable  for  the  negligence  of  a  co-servant  applies 
to  one  who  is  voluntarily  aiding  the  master's  laborers."  A  master 
is  not  ordinarily  liable  to  one  servant  for  the  negligence  of  a  co- 

'  Rodngues  v    MelhuisJi,  10   Escli.  ^  Powell  v.  Deveney,  3  Cusli.   300 ; 

110.  Lynch  v.  Nurdin,  1  Ad.  &  Ell.  N.  S.  29, 

'  0-ilmartin  v.  The  Mayor,  55  Barb.  41  Eng.  C.  L. 

239.  9  Corrigan  v.    Union,  etc.,  98  Mass, 

3  Steele  v.  Smith,  3  E.  D.  Smith,  321.  577 ;  Driscoll  v.  Newark,  etc.,  37  N.  Y 

*  Tifft  V.  Tifft,  4  Denio,  17.^.  637. 

^  Richmond,  etc.  v.  Vanderbilt,  1  Hill,  ">  Althorf  v.  Wolfe,  22  N.  Y.  355. 

480.  "  Warburton  v.  Great  Western,  L.  R. 

"  Frazer  v.  Freeman,  43  N.  Y.  566.  2  Exch.  2d. 

'  Weed  V.   Panama  R.   R.    Co.,  17  ''^  Wicfgett  v.  Fox,  11  Excli.  832. 

N.  Y.  362  ;   Althorf  v.   Wolfe,   22  id.  '^  j)f,gg  y.  Midland,  1  Hurl.  &  Norm 

355.  773. 


S76  COMPLAINT  IN   PAETICULAE   CASES.       [CH,  IV  A. 

servant.'  Plaintiff  hired  laborers  to  make  a  crop  on  his  farm, 
under  a  contract,  by  which  the  laborers  were  to  have  one-third  of 
the  crop  for  their  services,  the  plaintiff  retaining  two-thirds  for 
himself.  In  June  one  of  the  laborers  was  shot  and  disabled  for 
several  weeks,  in  consequence  of  which  the  crop  was  considerably 
less  than  it  would  have  been.  Held,  that  plaintiff  had  sustained 
no  legal  injury  which  gave  him  a  right  of  action  against  the  party 
who  inflicted  the  wound.  The  common  law  gives  the  master  no 
right  of  action  against  a  third  person  for  an  injury  inflicted  upon 
his  servant,  causing  loss  of  service,  except  where  the  servant  is  a 
menial  one." 

Milk.  —  An  action  for  fraudulently  adulterating  milk  may  be 
brought  in  the  name  of  the  owner  of  a  cheese-manufactory  and 
its  partrons,  where  the  cheese  is  to  be  divided  in  proportion  to  the 
quantity  of  milk  furnished  by  each  f  and  so  by  the  treasurer  of 
such  association,'' 

Mistake.*  —  It  has  been  held  that  in  pleading  a  mistake,  omit- 
ting to  allege  that  it  was  mutual,  renders  the  pleading  invalid;* 
but  this  doctrine  should  be  accepted  with  the  qualification  that 
there  must  be  no  fraud  on  the  part  of  the  party  against  whom  the 
reformation  is  sought.^  As  a  rule,  the  mistake  must  be  shown 
to  be  one  of  fact  and  not  of  law ;  *  but,  if  a  party,  acting  in  ignorance 
of  a  plain  and  settled  rule  of  law,  is  induced  to  give  up  a  poi'tion 
of  his  indisputable  property  to  another  under  the  name  of  a  com- 
promise, a  court  of  equity  will  relieve  him  from  his  mistake."     A 

'  Lovegrove  v.  London,  etc.,  16  C.  B.  liard's  Rem.  for   Tcrts,  Kent's  Com., 

N.  S.  669,  111  Eno;.  C.  L.,  and  see  cases  Kerr  on  Inj.,  Parson's  on  Cont.,  2Conw. 

cited,  698,  note;  Bearle  v.  Lindsay,  11  Rob.  Prac.,4  id.,  5  id.,  6  id.,  Selwvn's 

C.  B.  N.  S.  429, 103  Eng.  C.  L.  N.  P.,  Smith's  Man.  C.  L.,  Smith's  Man. 

^  Burgess  v    Carpenter,   3   So.   Car.  Eq.,  Sto.  Eq.  Jur.,  Taylor's  Ev.,  Wait's 

N.  S.  (Richardson)  7.  Law  and  Prac,  Washb.  on  Real.  Est., 

^  Thompson  v.  Howe,  46  Barb.  287  ;  Willard's  Eq.  Jur.,  Waterman's  ed.  on 

6  Edm.  St.  300-301 ;  id  478.  Inj. 

*Briaenbekker  v.  Hoard,  32  How.  389.  «  Kreitz  v.  Frost,  5  Abb.  N.  S.  277 ; 

^  Actions  for  the  reformation  of  con-  Mills  v.  Lewis,  37  How.  418,  55  Barb, 

tracts  on  the   ground  of  mistake  are  179 ;  Story  v.    Conger,  36   N.   Y.  673  . 

treated  of  by  the  editor  of  the  present  Midlandv.Johnson,QiionsQ'LorAs,1QB', 

edition   in  a  note  to   FisJiell  v.  Bell,  Hawkins  v.  Jackson,  2  McN.  &  Gord 

Clarke's  Ch.  42,  marg.  pp.;  and  Hmn-  372. 

lin  V.  McCaJiill,  id.  2!)2,  marg  pp.;  see  '  Moak's  notes  to  Clarke's   Ch.   42 

also   Kerr  on   Frauds   and    Mistakes,  marg.  pp.,  and  cases  cited ;  Stori/  v 

Adams's   Eq.,  Addison   on   Cont.,  Bl.  Conger,  36  N.  Y.  673. 

Com.,  Bouv.  Inst.,  Broom's  Com.,  Chitty  "  Moak's  note  stipra. 

on  Cont.,  Daniell's  Chy.  Pr.,  Edw.  on         '  Dunlap's  note  to  Alwood  v. 

Bailm.,  Estee's  PI.,  Fry  on  S])ec.  Perf.,  5  Russ.  150,  Banks's  ed.  and  cases  rited 

(ireenl.  on  Ev.,  Hilliard  on  Torts.,  Hil-  Haylor  v.  Winch,  1  Sim.  &  Stu.  504. 


CH.  IV  A.]       COMPLAINT  IN  PAETICULAR   CASES.  377 

concealment  or  misstatement  of  the  law  may  operate  as  a  fraud, 
from  which  the  pai'ty  should  be  relieved,*  If  a  deed  complies 
with  a  written  agreement  between  the  parties,  the  grantee,  who 
claims  a  mistake  in  the  deed,  must  allege  and  prove  that  the 
written  agreement  was  also  the  result  of  mistake.'  Where  the 
parties  contracted  for  the  sale  and  purchase  of  a  lot  120  feet  in 
depth,  supposing  a  stable  in  rear  was  thereon,  but  the  120  feel 
did  not  cover  the  stable,  a  reformation  of  the  deed  was  refused,  aa 
the  quantity  agreed  to  be  was  in  fact  conveyed.^  Where  persons, 
by  mistake,  pay  more  than  their  indebtedness  to  the  debtor,  to 
the  sheriff  holding  an  attachment  against  him,  they  cannot  recover 
l)ack  the  same  from  the  sheriff,  or  the  creditor,  after  the  sheriff 
lias  paid  it  over  to  him.*  Where  there  was  a  mistake  of  facts, 
which  has  been  honestly  acted  upon  by  the  other  party  and  he  will 
be  prejudiced  without  redress,  by  being  compelled  to  rectify  it,  he 
will  not  be  obliged  to  do  so.^  Otherwise,  if  he  will  not  be 
injured,  but  will  have  the  same  remedies,  though  the  party  seeking 
freedom  from  being  guilty  of  negligence.' 

The  defendant,  an  executrix,  being  entitled  to  a  sum  of  money 
lent  by  the  testator,  and  secured  to  him  by  bond  and  mortgage, 
applied  to  the  debtor  for  payment.  He  referred  her  to  a  bank 
which  had  purchased  the  mortgaged  property  subject  to  the 
mortgage.  The  bank  paid  the  money.  It  turned  out  that  the 
testator,  by  a  subsequent  will,  which  had  been  suppressed  by  the 
family  of  the  debtor,  that  the  debtor  had  no  title  to  the  property 
and  had  conveyed  none  to  the  bank ;  held,  the  bank  could  not 
recover  it  back.  The  defendant  simply  received  her  debt,  and  if 
the  bank  saw  fit  to  pay  it  upon  an  invalid  arrangement  between 
themselves  and  the  debtor  the  defendant  was  not  in  fault,  and  had 
nothing  to  do  with  the  consideration  which  moved  the  bank  to 
pay.'  It  seems  the  bank  could  have  recovered  it  of  the  debtor.* 
When  a  debtor  transfers  to  his  creditor  the  promissory  note  of  a 

'  Uoo7ce  V.  Nathan,  16  Barb.  343.  «  Union,  etc.  v.  Sixth,  etc.,  1  Lansing, 

^  Chnstianson  v.  Linford,^B.6b.  215.  13,  and  see  Kiyigston  Bank  v.  Eltinge, 

■'  White  V.  Williams,  48  Barb.  223.  40  N.  Y.  391 ;  Kelli/  v.  Solari,  9  Mees. 

*  Duncan  v.  Berlin,  5  Bob.  457.  &  Wels.  54. 

'"  Oillespie  v.  Carpenter,  25  How.  208,  ''  'Aiken  v.  Short,  1  Hurl.  &  Norm. 

1  Hob.  G5,   afif'd  in  Court  of  Appeals,  209. 

.Tune,  1868.  35  How.  643,  but  see  King-  ^  Union,  etc.  v.  Sixth,  etc.,  1  Lans.  14 

aU'ii   Bank  v.    Eltinge,  40  N.  Y.   391  ; 

Ncioall  V.  Tomlinson,  L.  R.,  G  C.  P.  405. 

48 


B7S  COMPLAIA'T   IN   PAKTICULAR   CASES.       [CH.  IV  A. 

third  person,  in  full  pajonent  and  discharge  of  the  debt,  if  the 
maker  be  at  the  time  of  the  transfer  insolvent,  and  that  fact  be 
unknown  to  both  parties,  it  is  a  case  of  mutual  mistake,  and  the 
creditor  may  recover/ 

Where  a  party  purchased  some  hay  by  measurement,  supposing 
it  to  contain  a  ton,  but  it  in  fact  contained  much  less,  held,  ho 
could  recover  back  the  amount  paid  for  the  excess."  In  an  action 
to  recover  back  money  paid  by  mistake  of  fact,  it  is  no  defense 
that  the  plaintiff  had,  within  his  reach,  the  means  of  ascertaining 
the  truth,  or  that  he  omitted  to  use  vigilance  and  care  by  which 
the  mistake  would  have  been  avoided ;"  as  where  the  plaintiff,  in  a 
subsequent  execution,  assented  to  the  plaintiff"  in  a  prior  one, 
receiving  the  amount  of  sales  on  a  levy  under  the  second  execu- 
tion, supposing  the  time  to  levy  on  the  first  had  not  expired.*  A 
party  purchasing  a  title,  believed  by  himself  and  his  grantor  to  be 
doubtful,  cannot  recover  back  the  amount  paid  by  showing  that  it 
was  in  fact  void  f  otherwise,  if  it  were  believed  to  be  good,  but  the 
parties  were  mistaken  as  to  the  fact.'  Mere  forgetfulness  is  a 
mistake,  and  if  a  party  so  pays  money  a  second  time  he  may 
recover  it  back  f  and  so  over-payments  upon  a  mortgage.'  If  the 
minds  of  the  parties  do  not  meet  there  is  no  mistake  of  facts  but 
a  failure  to  agree  upon  a  contract,  and  a  contract  so  entered  into 
will  not  be  reformed.*  One  who  has  paid  money  under  a  charge 
that  he  was  the  father  of  a  bastard  child  may  recover  it  back  if 
the  alleged  mother  were  not  in  fact  pregnant.  ° 

Where  the  holder  of  a  note  induces  an  indorser  to  believe  it  has 
been  protested,  when  it  has  not,  the  indorser,  if  he  has  paid  the 
note,  may  recover  back  the  amount  so  paid."  It  has  been  held 
that  if  one  mistakenly  suppose  part  of  a  note  has  been  paid,  and 
sue  for  and  recover  the  balance,  he  may,  on  discovery  of  the  mis- 
take, recover  the  balance,  simply  counting,  in  his  complaint,  upon 

'  Roberts  v.  FisJier,  43  N.  T.  159.  Bk.  v.  Bank  of  Albany,  1  Hill.  287  ; 

'  Srott  V.  Warner,  2  Laus.  49.  Waite  v.  LrggM,  8  Cow.  195  ;  Lake  v. 

^  KinrjHton  Bank  v.  Eltinqe,  40  N.  Artisans'  Bank,  1  Trans.  App.  73,  3 

T.  391 ;  The  Union,  etc.  v.  The  Sixth,  Abb.  N.  S.  212. 

etc.,  4.'5  id.  452.  '  Thompson  v.  Otis,  42  Barb.  461. 

•*  Kingston  Bank  v.  Eltinge,  40  N.  *  New    York,  etc.  v.   Northwestern 

Y.  391.  etc.,  10  Abb.  35. 

*  Ornnger  v.  Oleott,\  Lans.  169.  »  Rheel  v.  Eicks,  25  N.  T.  289. 

*  Kelly  V.  Solriri,  9  Mees.  &  Welsb.  ">  Lake  v.  Artisans'  Bank,  1  Tran& 
54 ;   Lucas  v.  Worswick,  1   Moodv   &  App.  71,  3  Abb.  N.  S.  210. 

Rob.  293, 1  Story's  Eq.  Jur.,  §  140;  Canal 


en.  IV  A.]       COMPLAINT  IN   PAETICULAK   CASES.  379 

the  balance  in  fact  unpaid ; '  but  this  is  only  a  connty  court  case, 
and  however  equitable  it  may  seem,  it  is  doubtful  whether  a  party 
can  thus  split  up  a  single  cause  of  action,  and  thus  recover  the 
balance  in  an  action  at  law.  Either  party  to  an.  agreement  founded 
on  mistake  may  come  to  equity  for  relief.'* 

If  the  plan  of  property  sold  have  misled  the  purchaser,  a  specific 
performance  will  not  be  decreed.^  A  bill  of  exchange  was  drawn 
upon  the  plaintiff  by  his  correspondent,  against  a  bill  of  lading, 
which  was  sent  through  the  defendants  —  a  bank  —  for  presenta- 
tion and  collection.  The  bank  presented  the  bill  to  plaintiff  with 
this  memorandum  :  "  The  bank  holds  the  bill  of  lading  and  policy 
for  two  hundred  and  fifty-one  bales  of  cotton  for  William  Cum- 
mings."  Plaintiff  accepted  the  bill  without  asking  to  see  the 
bill  of  lading,  and  afterward  retired  it  before  it  was  due,  paid  the 
money  and  received  the  bill  of  lading,  which  proved  to  be  a  for- 
gery. Held,  the  memorandum  did  not  amount  to  a  guaranty  that 
the  so-called  bill  of  lading  was  genuine,  and  that  plaintiff  had  no 
equity  to  recover  back  the  money.* 

Mr.  Austin,  one  of  the  ablest  of  writers,  says :  ^  "In  the 
case  of  money  paid  and  received  by  mistake,  it  is  necessary  to 
distinguish." 

If  the  money  was  received  hona  fide,  it  is  surely  expedient  that 
a  demand  should  precede  the  action ;  for,  until  the  debtor  is  ap- 
prised of  the  mistake,  it  is  impossible  to  say  that  he  has  broken, 
intentionally  or  hy  negligence,  his  obligation  to  return  the  money. 

If  the  money  was  received  mala  fide,  the  act  of  recei\dng  the 
money  was  in  itself  an  injury  —  an  injury  analogous  to  unlawful 
taking.  The  only  difference  between  the  cases  lies  in  the  means. 
In  the  one  case  I  take  the  goods  of  another  without  the  consent 
of  the  owner  ;  in  the  other  case  I  take  the  goods  with  his  consent, 
but  by  reason  of  an  error  in  which  he  is,  and  of  which  I  avail 
myself  by  suppressing  the  truth.  Here,  therefore,  the  debtor  ia 
guilty  of  an  injury  from  the  very  outset,  and  no  demand  is  neces- 

*  ConkUn  v.  Field,  37  How.  455.  of  acting  as  agents,  sold  a  note  as  their 

*  Cooper  V.  PJiihbs,  L.  R.,2  H.  L.  149.     own,  and  Sherman  v.  Johnson,  56  Barb. 
^  Benny  v.    Hancock,  L.  R.,  6   Ch.     60,  where  the  defendants  were  guilty 

Api).  1.  of   fraudulent  representations  on  the 

•*  Leather  v.  Simpson,  L.  R.,  11  Eq.  sale  of  an  account. 

898  ;  but  see  Fake   v.   Smith,  7  Abb.  *  Austin's  Jur.  (3d  ed.)  488. 
N.  S.  107,  where  the  defendants,  instead 


880  complaijS-t  iisr  paeticulae  cases,     [ch.  iva. 

saiy  as  a  basis  for  the  action."  AkcI  this  doctrine  has  recently 
been  sanctioned,  in  the  exchequer  chamber,  by  two  verj  able 
judges.* 

Modified  contract.^ — Until  breach  a  contract  under  seal  can- 
not be  discharged  or  modified  by  parol,  and  the  action  should  be 
upon  the  original  and  not  the  modified  contract,*  except  so  far  as 
the  modification  may  relate  to  the  time  of  performance  merely  ;* 
but  a  new  contract  may  be  averred  and  proved  to  have  been 
accepted  in  satisfaction  of  a  prior  sealed  agreement  and  not  in  the 
mere  performance  of  it.^ 

Money  had  and  received.'  —  Tliis  action  lies  to  recover  money 
in  the  hands  of  one  person  equitably  belonging  to  another,'  as 
where  one  has  received  the  money  of  another  through  the  inter- 
vention of  a  forgery  by  a  third  person,  although  he  w^ho  received 
the  money  did  so  in  good  faith,  and  without  knowledge  thereof;* 
so  by  a  stockholder,  whose  stock  has  been  sold  under  a  forged 
power  of  attorney,  against  the  party  who  holds  the  proceeds  of 
the  sale  ;*  by  the  owner  of  a  draft  issued  by  the  government  for 
tis  bounty  or  back  pay,  against  one  who  received  it  through  a 
forged  or  unauthorized  indorsement ;'"  by  the  owner  of  a  draft 
against  one  who,  as  agent  for  a  party  who  acquired  his  title  thereto 
under  a  forged  indorsement,  collected  the  same  without  disclosing 
his  agency,  and  paid  over  the  proceeds  of  such  collection  to  his 
principal.'* 

An  action  will  not  lie  by  one  claimant  of  money  due  under  a 
contract  with  the  government  against  another,  when  the  same  is 
paid  by  an  officer  thereof,  to  the  claimant,  with  notice  of  the 

»  Martin,  B.,  and  Bramwell,  B.,  in  §§  307-316,  1  Wait's  Law  and  Pr.  70G 

Freeman    v.  Jeffries,  L.  E.,   4    Excli.  et  seq.,  1  Estee's  PI.  &  Pr.  404,  470. 

199,  200.  '  1  Cliitty's   PI.  351,  note  ;  Buel  v. 

^  As   to   form    of    complaint   see   1  Boughton,  2  Den.  91.     But  see  Butter- 

Estee's  PI.  &  Prac.  634.  worth  v.   Gould,    41  N.  Y.  462,  as  to 

^  Kuhti    V.   Stevens,  36    How.    275 ;  qualification. 

C'louyh  V.  Murray,  3  Eob.  16  ;  De  La  »  1  Chittv's  PI.  352. 

Croix  V.  Bulkley,  13  Wend.  71  ;   Law-  »  Marsh  v.  Keating,  1  Bing.  (N.  C.) 

reme    v.    Woods,  4    Bosw.   362,  363  ;  198,  27  Eng.  C.  L.  Eep. 

Allen    V.   Jaquish,  21    Wend.   628,   5  ^^  Iloltsinger v. National, etc., dilHow, 

Conw.  Eob.  Prac.  740-758.  203,  affirmed  by  Court  of  Appeals,  Feb, 

*  Gluuyh  V.  Murray,  3  Eob.  7;  14,  1871,  3  Alb.  Law  Jour.  y05.  But  see 
Meehait,  v.  Williams,  36  How.  73.  Osby  v.  Conant,  5  Lans.  310. 

6  Clouyh  V.  Murray,  3  Eob.  7.  "  Holt  v.  Iloss.  4  Alb.  Law  Jour.  11; 

*  Upon  the  subject,  generally,  see  Canal  Bank  w  Bank  of  Albany,  lUiW, 
2  Conw.  Eob.  Prac.  440-488, 1  Chit.  PI.  287  ;  Schaffer  v.  MeKee,  19  Ohio  St 
351  et  saq.,  1  Cow.  Tr.  (Kingsley's  ed.)  520. 


CH.  IV  A.]       COMPLY  i:S-T   ITT   PARTICULAR   CASES.  381 

claims  of  both,  notwithstanding  the  plaintiff  proves  himself  to 
have  been  entitled,  as  between  himself  and  the  defendant,  to  have 
received  such  moneys  from  the  government ;'  and  so  in  all  cases 
where  two  persons  claiming  adversely  to  each  other  apply  for 
payment  to  the  debtor,  and  one  of  them  is  recognized  as  the 
creditor,  and  paid  to  the  exclusion  of  the  other.*  The  distinction 
between  the  latter  cases  and  those  where  one  receives  the  money 
of  another  through  the  means  of  a  forged  indorsement  is  appar- 
ent. In  the  one  case  the  party  receiving  the  money  receives  it 
as  his  own,  claiming  under  an  independent  title,  and  without  in 
any  way  claiming  through  the  other  party ;  in  the  case  of  a  forged 
indorsement  the  person  receiving  the  money  necessarily  does  so, 
admitting  that  it  originally  belonged  to  the  payee,  and  that  he  is 
receiving  it  under  or  by  virtue  of  his  rights.  Where  one,  by 
mistake,  receives  plaintiif 's  wheat,  sells  it  as  agent  for  another, 
and  accounts  therefor  to  his  principal,  he  is,  nevertheless,  liable 
to  the  plaintiff;'  so,  generally,  the  action  lies  to  recover  back 
money  paid  by  a  mistake  of  fact ;  as  by  a  subsequent  judgment 
creditor  against  a  prior  one  to  recover  moneys  paid  by  the  sheriff 
with  plaintiff's  assent,  he  mistakenly  supposing  defendant's  exe- 
cution had  not  expired  at  the  time  of  making  the  levy.* 

The  right  to  the  salary  or  emoluments  of  an  ofBce  depends  upon 
the  performance  of -the  duties  thereof;  one  who  was  deprived  of 
the  right  to  perform  them  by  an  officer  de  facto  cannot  maintain 
an  action  against  the  government  for  the  salary,  on  the  ground 
that  the  payment  thereof  to  the  de  facto  incumbent  was  wrong- 
ful.'    It  has  been  repeatedly  held,  that  an  officer  dejure  may 

'  Butterworth  v.  Gould.  41  N.  Y.  450.  should  have  been  paid  to  him.     In  ore 

^Patrick  v.  Metcalf,  37  N.  Y.  .332;  case  the  debtor  decided  for  himself,  and 

Murphy  v.  Ball,  38  Barb.  202.  at  his  peril,  who  was  the  creditor;  in  the 

*  Vohh  V.  Bows,  10  N.  Y.  335.  other  the  creditors  themselves  decided 

■*  Kingston  Bank  v.  Eltinge,  40    N.  it  for  him,  but  did  so  under  a  mistake 

Y.  391.     This  case,  and  Butterworth  v.  of  facts,  which,  as  betioeen  themselves, 

Oould,  supra,  are  apparently  but   not  rendered  the  consent  legally  invalid, 

really,  we  think,  in  conflict.     In  But-  and  which  left  the  money  subject  to 

terworth  v.  Oould  the  creditor's  remedy  the  plaintiff's  equitable  rights  thereto, 
against  the  debtor  remained  unaffected         ^  Smitli  v.  Mayor,  etc.,  37  N.  Y.  518. 

by  the  payment.     In  Kingston  Bank  This   case   must   be  held  to  overrule 

V.  Eltinge,  although  defendant  claimed  People  v.  Brennan,  30  How.  417  ;  1  Abb. 

the  money  as  his  own  under  an  inde-  N.  S.    184,    although   nothing   is    said 

pendent  title,  the  plaintiff's  assent  to  therein  of  the  latter.     See,  also,  Mont- 

the  sheriff  paying  the  money  to  defend-  gomery  v.    United  States,  5    Court   of 

ant  precluded  him  from  maintaining  Claims  Rep.  93,  where  an  officer  was 

an  action  against  the  sheriff  to  recover  dismissed  and  reinstated, 
what  was  really  his  own,  and   what 


382  COMPLAIITT  IN  PARTICULAR   OASES.       [CH.  IV  A. 

maintain  an  action  against  a  de  facto  incumbent  receiving  the 
salary  or  emolmnents  of  an  office ;'  but  this,  under  the  recent 
cases,  may  be  doubted,  unless  the  courts,  to  accomplish  an  act  of 
seeming  justice,  are  able  to  make  a  distinction  more  subtle  than 
now  occurs  to  us,  between  such  a  case  and  that  of  an  ordinary 
creditor  of  the  government,  who  receives  payment  of  a  demand 
under  an  independent  claim  of  right  thereto.  If  it  be  said  tliat 
an  officer  de  jure  may  practically  be  deprived  of  the  emoluments 
of  an  office,  the  answer  is,  that  he  has  no  legal  blaim  thereto, 
except  where  he  acquires  it  by  a  discharge  of  the  duties  thereof." 
An  agent  who  receives  the  note  of  a  debtor  to  his  principal,  and 
sells  the  same  for  less  than  its  face,  is  liable  to  his  principal,  in  an 
action  for  money  had  and  received,  for  the  face  of  the  note.  He 
will  be  treated  as  having  made  himself  answerable  to  his  principal 
for  the  full  amount  he  oxight  to  have  received  from  the  debtor.* 

Money  paid  by  an  agent  under  a  mistake  as  to  the  legal  obliga- 
tion of  his  principal  may  be  recovered  back  by  the  principal,  in 
an  action  for  money  had  and  received  ;  as,  for  instance,  where  a 
government  collector  improvidently  and  mistakenly  pays  a  fish- 
ing bounty  to  a  vessel  which  has  not  been  enrolled  in  a  manner 
entitling  her  to  the  bounty  ;*  so  where  the  principal  himself  so 
pays  the  money,^  or  where  a  person  who  is  not  entitled  to  a  pen- 
sion fraudulently  obtains  one,  and  the  money  is  received  by 
another  with  notice  thereof.* 

Money  paid  to  defendant,  and  for  liis  use."  —  One  wlio 
refuses  to  perform  a  contract,  on  the  ground  that  it  is  void  by  the 
statute  of  frauds,  cannot  recover  what  he  has  paid  thereon,  if  the 
other  party  be  ready  and  willing  to  perform.*  If  the  vendor  have 
not  refused  to  perform,  the  vendee  cannot  recover  back  what  he 
paid  upon  the  contract  without  averring  and  showing  that  the 
vendee's  title  is  absolutely  bad.     It  is  not  sufficient  to  show  it 

'  Piatt  V.  Stmt,  14  Abb.  178,  1  Chit-  «  TI.  S.   v.  Inhabitants,  etc.,  Davies, 

ty's  PI.  100  and  cases  cited  ;  Brightly's  154,  Ware,  district  judge. 

Lead.  Cas.  on  Elections  GOo,  GIG  ;  May-  '  Upon  the  subject,  generally,  see  3 

■(ield  V.  Moore,  5  Am.  Rep.  52,  53  111.  428.  Conw.  Rob.  Prac.  434,  et  sec/.,  1  Estee's 

•'  Smith  V.  Mayor,  etc.,  37  N.  Y.  518.  PI.  &  Prac.  481,  et  seq.,  1   Cow.    Tr. 

3  Allen  V.  Broim,  51  Barb.  8G;   Van  (Kingsley's  ed.)  §§  317-330  &,  1  Wait's 

Rensselaer    v.   Morris,   1    Paige,   13  ;  Law  and  Prac.  698,  et  seq. 

BeardsUyv,Root,\l3o\\na.A.<oL  »  Moak's  note  to  Clarke's  Ch.  360^ 

■*  U.  S.  V.  Bartlett,  Davies,  9,  Ware,  marg.  p.,  and  cases   cited  ;    see    also 

district  judge.  Simon  v.  Kaliske,  G  Abb.  N.  S.  225. 
•rUcher  v.TheTurin,  etc.,  10  Barb.  337. 


CII.  rVA.]       COMPLAIIN-T   IIST   PAETICULAR  OASES.  383 

doubtful/  The  rule  is  different  in  an  action  at  law,  from  a  suit 
in  equity,  by  the  vendor,  to  compel  the  specific  performance  of  a 
contract  to  purchase/ 

One  who  pays  money  is  not  bound  to  show  he  paid  it  in  the 
discharge  of  a  liability,  binding  either  on  the  plaintiflP  or  on  the 
defendant ;  it  is  enough  to  show  that  it  was  paid  in  accordance 
with  an  uncountermanded  authority,  or  in  compliance  with  an 
express  or  implied  request,^  as  an  usurious  note  f  or  an  agreement 
void  by  the  statute  of  frauds  ;*  or  on  bets  which  were  illegal  ;* 
the  principal  can  only  prevent  the  surety  who  pays  an  usu- 
rious debt  from  recovering,  on  the  ground  that  he  expressly  for- 
bade his  doing  so  before  the  payment  was  made.* 

It  has  been  held  that  money  paid  to  another  for  an  illegal  pur- 
pose, as  for  betting,  cannot  be  recovered  back,  though  it  be  never 
used  for  such  purpose ;'  but  after  a  retrial  of  the  case  it  was  held, 
on  appeal,  that  if  the  money  was  not,  in  fact,  used  according  to 
directions,  or  if  the  plaintiff  had  countermanded  his  instructions 
before  it  was  so  used,  it  might  be  recovered  back ;"  so  it  has  been 
held  in  Massachusetts,  that  an  indorser  who  pays  a  note  before  it 
is  protested,  and  he  charged  as  indorser,  cannot  recover  the  monev 
so  paid,  on  the  ground  that  the  payment  is  gratuitous,*  but  the 
court  did  not  notice  a  prior  decision  in  that  State  to  the  contrary," 
and  the  English  courts  have  held  the  reverse."  The  rule,  how- 
ever, only  enables  the  surety  to  recover  of  a  principal  debtor,  on 
the  ground  of  an  implied  request,  until  countermand,  to  pay  the 
obligation.  It  does  not  apply  against  a  surety.  Where  sureties 
in  a  bail  bond  had  the  right  to  surrender  tlieir  principal,  before 
suit  brought  against  them,  and  one  of  them  being  sued  before 
the  other  paid  the  bond,  held,  he  was  not  entitled  to  contribution ; 
that  he  had  paid  the  bond  before  his  co-surety  became  fixed,  and 

'  O'Reilly  v.  King,  2  Rob.  587.  ^  Rust  v.  Morse,  2  Hill.  656, 657,  Pit- 

'  Alexander  v.  Vane,  1  Mees.  &  Wels.  man's  Pr.  and  Surety,  130. 

511 ;  Brittain  v.  Lloyd,  14  id.  762  ;  Ford        ^  Knight  v.  Cambers,  15  C.  B.  561, 

V.  Keith,  1  Mass.  139 ;  Shaw  v.  Loud,  80  Eng.  C.  L. 

12  id.  447  ;  Hasdnger  v.  Solms,  5  Serg.        «  Ford  v.  Keitli,  1  Mass.  139,  143. 

h  Rawle,  4,  1  Cromp.  &  Mees.  4S0,  note         '  Morgan  v.  Groff,  5  Denio,  364. 

(Johnson's  ed.) ;  Armstrong  v.  Toler,  11        »  Morgan  v.  Oroff,  4  Barb.  524. 

Wheat.  258  ;  Billiard  v.  Ray  nor,  30  N.        »  Bachelor  v.  Priest,  12  Pick.  399. 

T  197  ;  see  Rust  v.  Morse,  2  Hill,  65G,       'o  Ellsworth  v.  Brewer,  11  Pick.  316. 

and   Theob.  Pr.  and  Surety,  173,  and       "  IJuntly  v.  Sanderson,  1   Cromp.  & 

cases  cit(>d.  Mees.  467. 
^  Curtis  V.  Leavitt,  17  Barb.  311 


liad  no  right  to  thus  deprive  him  of  his  right  to  surrender  the 
principah'  In  this  case  the  co-surety  was  not,  as  will  be  readily 
seen,  the  principal  debtor,  and  the  law  would  not  implj'-  a  request 
to  his  co-surety  to  pay  the  inchoate  obligation.  Where  a  surety 
on  a  bill,  after  acceptance,  paid  it  before  it  was  demanded  of  the 
acceptor,  and  protested  as  against  the  drawer,  it  was  held,  he 
could  not  recover  of  the  drawer,  for  as  soon  as  it  was  accepted  he 
was  not  the  principal  debtor,  but  a  surety  for  the  acceptor,  and 
could  only  be  made  liable  upon  the  bill  after  demand  and  protest." 
Negligeuce.' —  Where  the  sailing-master  of  a  yacht,  contrary  to 
orders  from  the  owner,  fired  a  gun  left  there  Math  ammunition,  it 
was  held^  the  owner  was  not  liable  for  an  injury  occurring  from 
such  firing,  as  it  was  no  part  of  the  sailing-master's  duty  to  use  or 
discharge  the  gun.*  One  who  digs  post-holes  on  his  premises, 
along  and  contiguous  to  a  highway,  and  leaves  them  open  and 
unprotected,  is  liable  to  one  who  is  injured  by  stepping  into  them 
in  the  night-time.^  The  owner  of  premises  having  a  vault  in 
front,  under  a  highway,  is  bound  at  his  peril  to  provide  such  a 
covering  for  an  opening  into  the  vault  that  it  will  be  as  safe  to 
pass  over  as  if  no  such  vault  or  opening  had  existed.*  If  he  lease 
such  premises  without  providing  a  covering  with  secure  fastenings 
for  such  opening,  he  is  liable  for  injuries  sustained  by  a  passer-by, 
although  the  covering  may  have  been  removed  or  deranged  by 
the  tenant  or  a  third  person.''  The  owner  of  a  building  being 
erected  by  a  contractor  under  a  special  agreement  giving  the 
latter  the  control  of  the  works,  is  nevertheless  liable  if  he,  or  the 
architect  acting  for  him,  give  the  contractor  directions  which, 
being  negligently  followed,  result  in  injuries  to  a  third  person  ; ' 
otherwise  if  he  gave  no  directions.'  A  railroad  company  is  not 
liable  for  running  over  and  cutting  a  hose  used  in  putting  out  a 


'  Skillin  V.  Merrill,  16  Mas^s.  41. 

'^  Munroe  v.  Eanton,  2  Johns.  Cas.  75. 

^  Upon  the  subject,  generally,  see 
Shear.  &  Redf.  on  Neglisrcnce,  Sand,  on 
Nenfligence,  Camp,  on  Neirl'gcnce.Add. 
on  Torts,  Hill,  on  Torts,  Hill,  on  Reme- 
dies for  Torts,  Redf.  on  Railways,  4 
Conw.  Rob.  Prac.  index,  title  Negli- 
gence, and  titles  referred  to  ;  Tay.  Ev., 
Selwvn's  N.  P. 

*  linnck  V.  Fearing,  4  Abb.  N.  S.  297, 
5  Rob.  528. 

5  Wright  v.  Saunders,  36  How.  136,  3 


Keyes,  323  ;  Eadley  v.  Taylor,  L.  R.,  1 
C.  P.  53 ;  but  see  Cornwell  v.  Met.,  etc., 
10  Exch.  771. 

^Anderson  v.  Dickie,  1  Rob.  238; 
Irnii  V.  Wood,  4  id.  138,  147 ;  Irviii  v. 
Fotoler,  5  id.  482;  Sexton  v.  Zett,  56 
Barb.  119. 

'  Anderson  v.  Dickie,  1  Rob.  238; 
Irvin  V.  Wood,  4  id.  138,  147. 

»  Heffernan  v.  Benkard,  1  Rob.  432. 

'  Potter  V.  Seymour,  4  Bosw.  140 ; 
Gilbert  v.  Beach,  5  id.  445. 


fire  in  a  burning  building,  although  the  engineer  was  repeatedly 
requested  to  stop,  unless  he  was  informed  of  the  reason  why  he 
was  requested  to  stop,'  and,  it  seems,  even  if  he  had  been,  the 
damages  were  too  remote  to  have  been  the  subject  of  an  action." 
One  who,  in  erecting  a  building,  is  guilty  of  negligence  and  want 
of  skill  in  erecting  its  walls,  is  liable  to  one  injured  by  their  fall." 
The  owner  of  diseased  horses,  even  if  he  has  a  right  to  keep  them 
on  his  own  premises,  has  no  right  to  allow  them,  when  afflicted 
with  a  contagious  disease,  to  go  at  large  or  to  water  them  at  a 
public  tank  used  for  watering  sound  horses  by  other  persons.* 

One  who  jumps  off  a  street-car  moving  slowly  is  not  necessarily 
guilty  of  negligence  himself  which  will  preclude  a  recovery;' 
otherwise  if  it  be  moving  rapidly  although  the  driver  refuse  to 
stop.'  But  if  a  passenger  attempt  to  get  off,  without  any  notice 
to  those  in  charge  of  the  car,  and  without  their  knowledge, 
or  negligence  in  not  knowing  that  he  is  doing  so,  the  corpo- 
ration is  not  liable  for  injuries  received  by  him  through  a  fall 
occasioned  by  a  sudden  start  of  the  car.'  But  one  who  attempts 
to  cross  a  railway-track  with  sufHcient  time  to  do  so  before 
an  approaching  train  will  arrive  is  not  guilty  of  negligence,  be- 
cause there  might  be  danger  of  his  slipping  or  falling.*  One, 
who  without  any  assignable  business  is  standing  against  a  sta- 
tionary car,  where  he  cannot  be  seen  by  those  operating  a 
train,  and  they  back  one  down  against  such  stationaiy  car 
and  run  over  him,  is  guilty  of  negligence  which  precludes  a 
recovery;'  otherwise  if  he  be  legitimately  engaged  in  unloading 
a  car  negligently  backed  against.'"     A  canal  company  is  not  liable 

^3Iott  V.  Hudson  River,  etc.,  1  Rob.  »  Mettlestadt  v.  Ninth,  etc.,  33  How 

585.  428,  4  Rob.  377;  Mulhado  v.  Brooklyn, 

^  Matt  y.  Hudson,  etc.,  1  Roh.  585.  etc.,  30   N.  Y.   370;    see    Thrinas   v 

»  Seabrook  v.   Hecker,  2  Rob.  291,  4  Central  Park,  etc.,  7  Rob.  616. 

^\  ^^;,         ,  *  Ginnon  v.  m'-w  York,  etc. ,  3  Rob.  25. 

*  Mills  V.  N.  Y.,  etc.,  2  Rob.  336,  41  '  Wichols  v.  Middlesex,  etc.,  106  Mass. 

N.    Y.    619 ;    but   see   cases    cited    in  463. 

Moak's  Notes  to  Clarke's  Ch.,  p.  351,  »  Baxter  v.  The  Second,  etc.,  3  Rob. 

ed.  1869,  and  Cook  v.  Waring,  2  Hurl.  510,  30  How.  219. 

&   Colt.   332,   where  it  was  held,  the  »  Lehey  v.  Hudson,  etc.,  4  Rob.  204 ; 

owner  of  diseased  sheep  escaping  u]ion  Van    S^-haaick    v.    H.   B.   R.   R.,   43 

the  lands  of  another,  was  not  I'able  N.  Y.  537,  for  the  killing  of  Mr.  Van 

without  proof  of  scienter.     The  cat^e,  Santvoord,  the  author  of  the  present 

however,  does  not  advert  to  the  dis-  work. 

tinction  in  the  cases  referred  to  by  Mr.  lo  Newson  v.  New  York,  etc.,  29  N. 

Moak,  that  the  sheep  were  trespassers  Y.  383  ;    Stinson  v    Same,  etc.,  33  id. 

and  the  owner  liable  without  knowl-  333. 
edge. 

49 


to  one  naviijatino;  its  canal  for  an  iniurv  sustained  by  a  rock 
wliicli  fell  into  the  canal  at  a  place  where  blasting  was  done  a 
long- time  before ;'  otherwise  as  to  a  canal  superintendent  guilt v 
of  negligence;  after  knowledge  of  an  obstruction  to  navigation," 
or  a  contractor  upon  the  canals  under  similar  circumstances/  A 
traveler  along  a  public  highway,  who  carelessly  injures  a  laborer 
engaged  in  clearing  the  track  of  a  horse-railroad  therein,  is  liable 
for  such  injury.*  The  owner  of  land  is  liable  to  those  coming 
upon  it  at  his  invitation,  express  or  implied,  for  an  injury  occasioned 
by  its  unsafe  condition  ;^  otherwise  as  to  one  owning  a  bridge 
which  fell  without  notice  or  knowledge  of  its  unsafe  condition.'  So 
a  railroad  company,  whose  premises  are  unsafe,  is  liable  to  a  pas- 
senger alighting  after  a  train  stops  at  or  near  a  station.'  So  one  who 
keeps  a  vault,  so  that  with  his  knowledge  filthy  M'ater  habitually  hlt- 
ers  into  his  neighbor's  land,  is  liable  for  the  injury  thus  caused ;'  but 
one  who  uses  his  land  in  the  ordinary  manner,  without  willfulness 
or  negligence,  is  not  liable  in  damages,  although  mischief  should 
thereby  be  occasioned  to  his  neighbor.*  One  who  has  machinery 
on  exhibition  in  a  public  place  is  not  liable  if,  during  his  absence, 
a  small  boy  sets  it  in  motion  and  is  injured  by  it ;"  but  one  who 
sells  a  child  of  tender  years  gunpowder  or  other  dangerous  materials, 
is  liable  for  an  injury  occurring  to  the  child  by  a  careless  use 
thereof."  Otherwise,  however,  if  the  child's  parents  or  guardians 
know  he  has  it,  and  permit  him  to  use  it.'"  So  a  military  officer 
who  negligently  gives  a  command,  in  drilling  his  subordinates, 
for  them  to  snap  their  guns  when  pointed  toward  spectators,  one 

*  Weitner  v.  President,  etc.,  4  Bob.     Cockle  v.  L.  &  S.  E.  R.  R.,  L.  R.,  5  C.  P. 
238.  457,  but  see  6  Queen's  Bench,  377. 

*  Adsit  V.  Brady,  4  Hill.  630 ;  Hicks        «  ^^.7  v.  Nye.  99  Mass.  582. 

V.  Dorn,  9  Abb.  N.  S.  54.  »  Eyl  mus  v.  Fletcher,  L.  R.,  3  House 

^  Robinson  v.  Chamberlain,  34  N.  T.  of  Lords,  330,  3  Exch.  352  (Johnson's 

889 ;  Hicks  x.  Dorn,  9  Abb.  N.  S.  54 ;  Am.  edition),  atfirming  S.  C.  in  Exch. 

Fulton,  etc.  v.  Baldicin,  37  N.  Y.  648.  Chamber,  L.  R.,  1  Exch.  265,  revers- 

*  Quirk  V.  Holt,  99  Mass.  164 ;  Smith  ing   S.  C.   in  Exch.   3   Hurl.   &   Colt. 
V.  London,  etc.,  h.  R.,  3  C.  P.  326  ;  but  773. 

see  Wilkson  v.  Fairris,  1  Hurl.  &  Colt.  ^''  Manga n  v.  Atterton,  L.  R.,1  Exch, 

633;   Sonthcote  v.  Stanley,  i  Hurl.  &  239  ;  Hughes  v.  McFie,  2  Hurl.  &  Colt. 

Norm.  247.  744. 

^  Carleton    v.    Franconia,    etc.,   99  ^^  Carter   v.    Towne,  98  Mass.    567; 

Mass.  216;   Indermaur  v.  Dames,   L.  Addison  on  Torts,  367  (3d  Enar.  edi- 

R.,  2  C.  P.  311,  Exch.  Chamber.  tion) ;  Dixon  v.  Bell,  5  Maule  A'^Selw. 

«  Gautret  v.  Egerton,  L.  R.,  2  C.  P.  198. 

371.  i^  Carter  v.  Towne,  103  Mass.  507. 

^  Hulbert  v.  New  York,  etc.,  40  N.  Y. 
145,  L.  R..  3    Exch.  150,  4   id.    117; 


of  the  guns  accideutly  proving  to  be  loaded ;'  although  not  liable 
criminally.'  If  the  servants  of  a  railroad  company  negligently  shut 
the  door  of  one  of  its  cars  upon  the  hand  of  a  passenger,  the  company 
is  liable  for  an  injury  thus  inflicted.'  A  railwaj^  company  which 
is  guilty  of  negligence  in  not  providing  proper  drains  or  culverts 
for  water  is  liable  for  an  injmy  resulting  therefrom.*  And  so, 
although  the  injury  result  from  the  neglect  of  persons  whose  duty  it 
was  to  keep  the  outlet  of  certain  dimensions,  in  consequence  of 
which  neglect  the  water  was  penned  back,  although  it  was  an 
unusual  freshet,  if  such  unusual  freshets  occur  once  in  every  two 
or  three  years.*  The  owner  of  a  ship  is  liable  for  an  injury  to 
goods  resulting  from  a  collision,  the  result  of  gross  carelessness  of 
the  master  or  crew,  although  the  bill  of  lading,  except  "  accidents 
or  damages  of  the  seas,  rivers  and  steam  navigation,  of  whatever 
kind  or  nature  soever."*  It  is  not  necessary  that  one  charged  with  a 
duty  in  case  of  knowledge  of  certain  facts  should  actually  know 
of  them  in  order  to  render  him  liable  for  negligence  ;  he  is 
equally  responsible  if  he  negligently  remain  ignorant  of  the 
causes  of  mischief,  and  so  leave  thein  unremedied ;'  notice  may 
be  inferred  by  its  continuance  a  considerable  time.*  "When  a  ves- 
sel sinks  in  a  navigable  river,  the  owner,  so  long  as  he  retains 
the  possession  and  control  of  it,  is  bound  to  take  due  precautions 
to  prevent  injury  to  other  vessels  by  their  running  against  it ;" 
otherwise  if  he  have  abandoned  it  entirely.'"  A  municipal  cor- 
poration, employing  workmen  to  lay  down  gas  pipes,  is  liable  for 
their  negligence."  So  it  is  liable  for  the  condition  of  its  streets  if 
it  have  assented  to  the  act  and  authorized  its  doing  by  any  one, " 

I  Castle  V.  Duryea,  33  Barb.  480 ;  2  Ruckman,  10  Bosw.  20,  16  Abb.  341, 

Keyes,  169,  Addison  on  Torts  (3d  Eng.  37  X.  T.  568. 

ed.),  367  ;  Weaver  v.  Ward,  Hob.  134.  ^  Davenport  v.  Ruckman,  10  Bosw. 

^  Reg.  V.  Hutchinson,  9  Cox's  Cr.  Cas.  20,  37  N.  Y.  568  ;  Shear.  &  Redf.  Neg. 

555.  ^^  148, 407  ;  Goodnouqh  v.  City  of  Osh- 

3  Fordham  v.  London,  etc.,  L.  R.,  3  kosh,  24  Wis.  549,  1  Am.  Rep.  202. 

C.  P.  368.  9  White  v.  Crisp,  10  Excli.  312. 

*  Bagnall  v.  London,  etc.,  1  Hurl.  &  ">  Xing  v.  Watts,  2  Esp.  675  ;  Brown 

Colt.  544.  V.  Mallett,  5   C.  B.  619,  57  Eng.  C.  L. ; 

5  Harrison  v.  Great,  etc.,  3  Hurl.  &  White  v.  Crisp,  10  Exch.  322. 

Colt.  231.  1'  Scott  V.  Mayor,  1  Hurl.  &  Norm.  59, 

«  Lloyd  V.  The  General,  etc.,  3  Hurl.  Shear.  &  Redf.  Xeg.,  ^^  135-140. 

&  Colt  283  ;  Arctic,  etc.,  v.  Austin,  54  '^  Shear.  &  Redf.  Neg.  ^  147  :  but  see 

Barb.  559.  Dorlin  v.  City  of  Brooklyn,  46  Barb. 

'  Mersey,  etc.,  v.  Gibbs,  3  Hurl   &  Colt.  604  ;   Wendell  v.  Mayor, '  39    id. "  329, 

1035  ;  S.  C,  11   House  of  Lords'  Cas.  4  Keyes,  261 ,  Storrs  v.  City  of  Utica, 

696,  L.  R.,  1  H.  L.  93 ;    Davenport  v.  17  N.  Y.  104  ;  Clarke  v.  City  of  Loch- 


The  owner  of  a  lot  has  a  right  to  use  steam-power  in  his  busi- 
ness ;  and  if,  while  so  doing,  his  neighbor  be  injured  by  an  explo- 
sion, he  is  not  liable  unless  he  was  gviiltj  of  negligence  contribu- 
ting to  the  injury/ 

Where  there  are  two  methods  of  doing  an  act,  both  of  wliich 
are  customary,  the  adoption  of  one  under  certain  circumstances, 
if  more  dangerous  than  the  other,  may  of  itself  be  negligence." 
Persons  performing  a  public  duty  gratuitously,  and  being  per- 
sonally guilty  of  no  negligence,  are  responsible  for  an  injury  to 
an  individual  through  the  negligence  of  workmen  employed  under 
them.'  One  who  employs  a  carrier  to  transport  a  dangerous 
material,  which  may  injure  another,  is  liable  for  any  injury  to  the 
carrier  or  his  servants  arising  from  his  omission  to  disclose  the 
nature  of  the  material.* 

The  mere  fact  that  one  goes  out  to  try  a  new  horse  is  not  such 
negligence  as  will  render  him  liable  for  an  injury  inflicted  by  the 
horse  running  away.^  Where  one  erects  a  building,  and  admits 
spectators,  for  hire,  to  view  a  public  exhibition,  he  is  liable  if  it 
was  negligently  constructed,  although  he  was  not  aware  of  the 
fact.*  If  two  railway  companies  use  the  same  track,  each  is  liable 
for  an  injury  to  a  passenger  arising  from  their  common  negligence 
or  the  negligence  of  either.'  If  the  servants  of  a  railroad  com- 
pany cut  grass  and  let  it  lie  and  dry  along  the  track,  in  conse- 
quence of  which  it  is  set  on  lire,  the  company  is  liable  for  an 
injury  resulting  therefrom.* 

If  one  order  goods  in  a  fictitious  name,  a  carrier  is  not  guilty 
of  negligence  if  he  deliver  them  to  the  person  who  in  fact  ordered 
them,  he  having  previously  taken  them  to  the  place  designated. 


Sort,  49 Barb. 580 ;  Creed  v.  Ilnrtmnn,  29 
r.  Y.  593  ;  Gilbert  v.  Beach,  5  Bosw.  445. 

'  Losee  v.  Saratoga,  etc.,  43  How. 
385. 

5  Cleveland  v.  Spier,  16  C.  B.  N.  S. 
399,  111  Eng.  C.  L. ;  Ilicks  v.  Dorn,  9 
Abb.  N.  S.  47,  42  N.  Y.  47,  54  Barb.  172, 
1  Lans.  81. 

»  Clothier  v.  Webster,  12  C.  B.  N.  S. 
790, 104  Eng.  C.  L. ;  Foreman  v.  Mayor, 
L.  R.,6  Q.  B.  217-18;  Mersey  v.  CAhhs, 
L.  R.,  1  H.  L.  93 ;  Ilolliday  v.  The  Ves- 
try, 11  C.  B.  N.  S.  192,  1()3  Eug.  C.  L., 
is  substantially  overruled  by  the  above 
cases. 


<  Warrant  v.  Barnes,  11  C.  B.  N.  S. 
553,.  103  Eng.  C.  L.,  Add.  on  Torts,  367 
(3d  Eug.  ed.). 

5  llammack  v.  White,  11  C.  B.  N.  S. 
588,  103  Eng.  C.  L. 

•*  Francis  v.  Cockrell,  L.  R.,  5  Queen's 
Beuch,  184. 

'  Thomas  v.  Rhymney,  etc.,  L.  R.,  5 
Q.  B.  226;  affirmed,  6  id.  268;  but 
pee  Mooney  v.  Hudson  River,  etc.,  5 
Rob.  548. 

^  Smith  v.  The  London,  etc.,  L.  R.,  5 
Cora.  PI.  98  ;  affirmed,  6  id.  14. 


DIl.  IV  A.J       COMPLAIXT   IN   PARTICULAR   CASES.  6b\) 

but  finding  it  closed.'  A  countv  clerk  who  fails  to  properly  docket 
I  judgment,  so  that  the  debtor  sells  his  property,  is  not  liable  for 
:he  amount  of  the  judgment,  without  averment  and  proof  that 
\he  'purchaser  had  in  fact  no  notice  of  the  judgment^  Plaintiif 
!.)d  his  horses,  which  were  gentle,  upon  a  ferry-boat,  and  left  them 
for  a  moment  unattended.  The  guard  chain  was  not  high  enough 
to  stop  them,  and  the  ferry  company  had  no  one  to  attend  them ; 
the  horses  became  frightened  by  the  steam-whistle  and  jumped 
M  the  boat.  Held,  the  company  was  liable,  if  the  jury  found, 
is  a  fact,  that  the  decks  were  so  slippery  that  plaintiff  could  not 
bave  stopped  the  horses  if  he  had  been  at  their  heads  or  on  his 
box,*  for  "  it  was  the  duty  of  the  ferry  company  to  have  proper 
md  suitable  guards  and  barriers  on  the  boat  for  the  security 
3f  the  property  thus  carried,  and  to  prevent  damages  from  such 
casualties  as  it  would  naturally  be  exposed  to,  though  there  was 
ordinary  care  on  the  part  of  the  traveler."  *  In  an  action  for 
damages  in  consequence  of  negligence  in  failing  to  protest  a  draft, 
only  nominal  damages  can  be  recovered,  unless  it  be  averred  and 
proved  that  if  due  notice  had  been  given,  the  plaintiff  might  have 
collected  the  amount  or  some  part  <5f  it.'  This  is  probably  good 
law  as  to  a  draft,  for  the  drawee  has  no  claim  against  the  payee 
thereon  until  acceptance,  and  retains  a  cause  of  action  on  the  original 
indebtedness.  It  would  not  apply  to  an  action  for  failing  to  pro- 
test a  note,  so  as  to  charge  an  indorser ;  for  the  law  presumes  that 
every  man  is  solvent.*  The  law  would  presume  the  note  could 
have  been  collected  of  the  maker. '  The  complaint  in  such  a  case 
should  show  loss  from  neglect  to  protest,  by  showing  that  the 
maker  was  insolvent,  and  that  in  consequence  thereof  the  amount  of 
the  note  was  lost  to  the  plaintiff.  In  such  case  the  negligent  agent 
is  not  Kable  for  the  costs  of  an  unsuccessful  suit  against  an  indor- 
ser, unless  by  misrepresentations  or  otherwise  he  induced  its 
bringing.''  One  who  receives  a  promissory  note  over-due  as  col- 
lateral security  for  a  debt,  with  a  request  to  collect  it  and  apply  the 

'  Hough   V.    London,  etc.,  L.  R.,  5  *  Lienan  v.  Dinsmore,  10  Abb.  N.  S. 

Exch.  50;  McKean  v.  Mclver,  L.  R.,  209,  N.  Y.  Com.  Pleas,  Gen.  Term. 

0  id.  36.  «  mff  V.  Glute,  12  Barb.  466  ;  Potter 

2  Blossom  V.  Barrp,  1  Lans.  190.  v.  Merchants'  Bank,  28  N.  Y.  642  ;  Wal- 

3  Short  V.  Knappl  2  Daly,  150.  rod  v.  Ball,  9  Barb.  271 ;  Rider  v.  Pond, 
'  8hort  V.  Knapp,  2  Daly,  153  ;  White  19  N.  Y.  269,  270. 

V   Wirmidmmet,  7  Cush.  157.  ''  Avrault  v.   Pacific  Bank,  1  Abb, 

N.  S.381. 


proceeds  upon  the  debt,  tliough  without  any  express  request  to 
sue  it,  incurs  the  obligation  to  use  due  diligence  in  its  collection 
and  to  sue  if  necessary ;  where  three  months  were  allowed  to 
elapse,  and  the  debtor  meanwhile  became  insolvent,  held,  the 
creditor  was  liable  for  the  amount  of  the  note.'  So  a  creditor 
who  negligently  allows  a  policy  of  insm-ance  he  holds  as  collateral 
to  expire,  in  consequence  of  not  paying  the  premiums  which  had 
been  secured  to  him,  is  liable  for  the  loss  thereof.'^  If  a  horse  be 
frightened  by  an  engine  and  train  of  cars,  so  that  he  rupture  a 
blood-vessel  and  die  therefrom,  the  railroad  company  is  not  liable 
unless  the  injury  resulted  from  some  wrongful  act  thereof,  either 
of  omission  or  commission ;'''  but  one  who  frightens  a  horse  with 
fire-crackers  is  liable,  although  an  infant,  for  the  firing  is  wrong- 
ful.* One  who  leaves  his  horses  unhitched  in  a  public  street,  in 
consequence  of  which  they  run  away,  fi'om  being  frightened,  is 
liable  for  the  damages  caused  by  such  running  away  ;^  so  for 
negligently  firing  a  gun  which  frightened  a  horse  ;'  or  for  beating 
a  drum  in  a  highway.'  One  whose  horse  is  found  running  in  the 
street  is  presumptively  guilty  of  negligence.*  So  where  several 
persons  are  playing  ball  in  a  public  street,  and  a  passer-by  is 
injured  by  the  ball,  all  are  liable.*  It  is  wot  per  se  negligence  for 
one  injured  by  the  whifiletrees  of  a  passing  team  to  stand  on  the 
outside  of  an  omnibus  where  passengers  are  allowed  to  stand ; '" 
80  if  he  be  carelessly  injured  by  the  whitfietree  of  a  passer-by  he 
may  recover  of  him." 

If  one's  team  be  frightened  by  other  teams,  trying  to  pass  each 
other  at  an  immoderate  speed,  he  may  recover  the  damages ; "  but 
the  owner  of  a  team  is  not  liable  for  an  injury  they  inflict  if 
rendered  unmanageable  by  being  struck  by  a  M'rong-doer.''  A 
druggist  wlio  sells  two  articles,  harmless  unless  mixed,  without 
being  notified  of  their  intended  use,  is  not  liable  to  one  who  pur 
chases  the  articles  from  the  original  vendee,  although  by  mistake 

^Wakeman  v.  Goirdy,  10  Bosw.  208;  ''  Loubz  v.  Hvfner,  1  Dev.  185. 

Smith  V.  Wilson,  Andrew's  Kep.  K.  B.  *  Jiwmmell  v.    WenUr,  Brightlv's  N. 

187;  Buckingham  v.  Payne.  86  Barb.  81.  P.  Kep.  133  ;  Dicknon  v.  McCoy^m  N. 

2  Sonle  V.  Union  Bank,  30  How.  105,  Y.  400. 

45  Barb.  111.  ^  Voshvrgh  v.  Moak.  1  Cusliing,  453. 

^  MoshiAr  V.  Utica,  etc.,  8  Barb.  427.  '"  Spooncr  v.  Bvoohhin,  etc.,  54  N.  Y 

•»  Conklin  v.  Thompfon,  29  Barb.  218.  230,  reversing  30  Barb.  217,  31  id.  419 

^Howe  V.   Peckham,  10  Barb.  65G  ;  ^'"Welliii'jv.Judge.AOV.&vh.im. 

Overton  v.  Dunn,  1  Miles  (Pa.)  39.  ''^  Biirnam  v.  Bvtle.r,  31  N.  Y.  480. 

*  CoU  V.  Fisher,  11  Mass.  137.  '^  Weldon  v.  Uurlcm,  etc.,  5  Bosw.  576. 


theartide  actually  sold  ^-as  different  from  that  intended  to  l>o 
sold ;  •  but  a  dealer  in  drugs  who  carelessly  labels  a  po.son  as  a 
harmless  medieine  is  so  liable,  even  to  a  remote  pnrebaser.      So  a 
dru-ist  who  sells  moiTbine  instead  of  quinme,  which  causes 
death.'     One  who  is  ignorant  of  the  properties  ot  a  poisonous 
dnio.  is  liable  to  criminal  prosecution  for  a  negligent  sale  or  use 
the.^of,<  and  a  civil  action  would  clearly  lie  in  such  a  case  ;  so  with 
a  dru-ist  who  grinds  medicines  in  a  mortar  which  has  been  used 
to  .rM  poisons,  without  properly  cleansing  it.'    The  party  so 
iniured  may  recover,  although  the  articles  were  purchased  for  him 
and  p.aid  for  by  another.'     If  one  sells,  to  be  fed  to  a  cow  part  of 
alot  of  hay  on  which  he  knows  white  lead  to  have  been  spdled  and 
the  cow  dL  from  the  effect  of  the  lead  in  the  hay,  he  is  liable  lor 
her  loss,  although  he  carefally  endeavored  to  separate  and  remove 
the  damaged  hay,  and  thought  he  had  succeeded. 

One  who  finds  a  rope  used  to  snspend  a  scaffold  attached  to  his 
chimney  is  guilty  of  negligence,  and  even  a  wrong  ul  act,  it  he 
ttie  the  ro-pe  and  leave  the  scaffold  suspended  so  tba    one^who 
steps  upon  it  will  be  precipitated  to  the  earth  and  injured     ^Vhere 
.    eve'  1  persons  engaged  in  a  common  undertaking,  to  sink  a  sewer 
and  jointly  hired'a  party  to  do  it,  who  left  a  hole  --y--^'  -J° 
which  plaintiff  fell,  held,  he  could  recover  against  eithei,  or  the 
party  employed  to  build  the  sewer.'     One  w-ho  injures  another  by 
I  glancing  ball,  while  firing  at  a  mark,  is  liable  tor  such  injury  ^ 
A  traveler  who  sees  or  can  see  ice  lying  in  a  public  street  is  bound 
to  avoid  it;  and,  if  he  does  not,  cannot  sustain  an  ^-^t^on  tor  an 
iniurv  sustained  while  traveling  over  it."     Otherwise  if  the  ice  be 
coveiL  by  snow  and  concealed  from  view."    In  Massachusetts  t 
has  been  held  that  the  owner  of  real  estate,  fi-onting  on  a  stree  , 
is  not  liable  for  an  injury  sustained  by  a  pedestrian  from  accumu- 

.  i5„*to»  v.  NicUs.  n  Allen,  514,    35  Big.  C  L  ;  BaM  v.  OilleU,  1  Alb. 
<  ThomM  V.  WiMhater,  6  NY.  397  ,  y,-,'^„.,   Wilvers.  3  Lans.  391. 

sntr/Fii..  SnoSfS<:»  .i»»?ebp.  «. -»^  -"»• 

V.  Small,  106  Mass  143  Tx^M  v.  Durand,  36  Conn.  183,  4 

3  Quin  V.  Moore,  lo  N.  i.  4-w.  '  f-r 

*Reg.  V.  Chamberlain,  10  Coxs  Cr.  ^m.  Kep  oo^  ^^   ^^^^ 

Cases,  486  ;  Reg.  v.  Spencer,  id.  53o^  i>'-^'  ^"^  ^-       ^    -^ 

6  Fleet  y.Hellenkemp,  13  B.  Monr  319.  4d  .  g^  ^^^^  580.. 

e  Lougmeid  v.  SoUidrry,Q  E^d..  .j-.;,  g^^S/v.  Holyike.  105  Mass.  83. 

Gladwell  v.  Stegall.  5  Biag.  (N.  C.)  ioo,  bee  btt  eu  v.        y 


latious,  naturally,  of  suow  and  ice,  tliougli  required  by  a  city 
ordinance  to  remove  it.* 

Where  a  railroad  company  negligently  set  fire  to  one  of  tlieir 
own  buildings,  from  which  fire  was  blown  to  plaintiff's  house, 
consuming  a  large  amount  of  money,  held,  that  as  plaintiif  could 
have  saved  the  money  by  reasonable  exertions,  the  company  were 
not  liable  therefor,'  although  it  was  a  question  for  the  jury 
whether  the  injury  to  the  house  was  too  remote.''  One  who 
maintains  a  building  so  that  ice  and  snow  will  collect  from 
natural  causes  and  fall  into  the  adjoining  highway,  is  liable 
to  a  passerby  injured  in  falling  therefrom.'  A  town  is  not 
liable  to  one  injured  by  a  defect  in  its  highway,  if  plaintiff  ran 
into  the  defect  in  consequence  of  losing  control  of  his  horse 
irom  the  rein  getting  under  the  horse's  tail."  One  injured  by 
a  vicious  cow,  driven  without  proper  care  by  one  who  knew 
her  vicious  propensities,  may  recover.^  It  is  a  question  of  fact 
for  a  jury  whether  a  servant  who  knows  portions  of  a  floor  are 
decayed,  is  guilty  of  negligence  in  passing  over  a  portion  thereof 
which  was  apparently  sound,  and  the  rottenness  whereof  could 
not  be  discovered  without  taking  up  the  floor.* 

Notice/  —  When  the  matter  alleged  in  the  complaint  lies  par- 
ticularly or  solely  within  the  knowledge  of  the  plaintiff',  he  should 
allege  that  the  defendant  had  notice  thereof  before  suit.*  "  When- 
ever the  defendant  may,  by  any  apparent  means,  come  to  the  knowl- 
edge of  the  thing,  then  no  notice  is  requisite  ;  or  if  it  be  a  thing 
that  the  defendant  may  as  well  come  to  the  knowledge  of  as 
the  plaintiff",  then  no  notice  is  requisite :  but  if  it  be  a  thing 
that  lies  particularly  in  the  knowledge  of  the  plaintiff,  then  notice 
ought  to  be  given.  As,  if  I  give  a  bond  to  pay  so  much  to  A 
when  he  cometh  into  Somersetshire,  then  A  ought  to  give  notice, 
because  he  may  come  in  the  night,  or  so  as  it  is  impossible  for  me 


'  Kirby  v.  Boylston,  etc.,  14  Gray.  82. 

'  Toledo,  etc.,  v.  Pindar,  5  Am.  Rep. 
57,  53  111.  447 ;  but  see  Moak's  note  to 
Duke,  etc.,  v.  Mnropolitan,  etc.,  2  Eng. 
Eep.  494,  and  Kellogg  v.  Chicago,  etc., 
*^(i  Wis.  223. 

2  Shipley  v.  Fifty  Associates,  106 
Mass.  194. 

*  Fogg  V.  Nahant,  106  Mass.  278. 

^  Rewes  v.  McNamara,  106  Mass. 
281. 


'  Huddlestone  v.  Loioell, etc.,  106  Mass. 
283. 

■"  Upon  the  subject  generally  see  1 
Chit.  PI.  328,  et  seq.,  3  Conw.  Rob. 
Prac.  598-601,  4  id.  pp.  13,  25,  66-7,  74, 
75, 81,  123,  207, 248,  274,  345. 346.  478,  1 
Eslee's  PI.  and  Prac.  236,  Saund.  Rep. 
6th  ed.  index  to  Notes,  title  "  Notice." 

^  Blo.ram  v.  Warner,!  Freein.  130; 
Cole  V.  JesHup,  2  Barb.  314 ;  Knight  v. 
Conn.,  etc.,  44  Vt.  472. 


to  know  it ;  but,  otlierwise  it  is  if  it  be  when  a  stranger  cometh 
into  Somersetshire,  for  there  I  may  take  notice  as  well  as  he." ' 
There  is  a  marked  distinction  between  cases  where  notice  is  neces- 
sary as  preliminary  to  the  action,  to  enable  the  defendant  to  pay 
and  save  the  costs  of  the  action,  and  cases  where  notice  is  necessary 
to  constitute  a  cause  of  action,"  Where  notice  is  required  it  is 
not  sufficient  to  allege  that  it  was  given,  "  according  to  the  form 
and  effect  of  the  condition "  of  the  instrument ;  but  the  party 
must  plead  the  facts,  showing  how  it  was  given.'  Nor  is  a  gen- 
eral averment  of  facts  "which  defendant  well  knew"  sufficient.* 
Otherwise  ot  an  allegation  of  the  facts  and  following  them  with 
one,  "  of  all  which  premises,  said  defendants  afterward  had  notice." " 
Notice  is  necessary  when  a  vessel  is  to  be  delivered  as  soon  as 
completed." 

No  notice  of  an  award  is  necessary  unless  notice  be  stipulated 
for ;'  nor  in  case  A  agrees  to  pay  if  B  shall  fail  to  do  so.* 

Where  the  statute  required  notice  to  remove  a  nuisance  or 
obstruction,  a  notice  "  to  remove  from  such  bulkheads  the  build- 
ings, sheds,  gates  and  fences  which  are  now  there  placed  or  kept" 
are  sufficient."  Where  the  law  requires  a  board  of  officers  to  give 
no-tice,  one  by  the  president  is  not  sufficient,  though  verbally 
authorized  by  the  board ;  '*  and,  as  a  rule,  the  particular  thing 
required  to  be  done  should  be  specified."  In  the  absence  of  an 
agreement  that  a  broker  may  sell  without  notice,  if  the  customer's 
margin  be  not  kept  good  such  notice  is  necessary.'"  One  who 
has  agreed  to  contribute  to  the  repair  of  a  canal  or  dam  is  entitled 
to  notice  of  a  call  to  contribute,  even  though  he  had  previously 
disclaimed  all  liability."    So  where  one  of  several  co-sureties  pays 

•  Clerke  v.  Child,  1  Freem.  254,  3  '  3  Saund.  Rep.  63  a,  note.  Tlie  case 
Saiind.  Rep.  63  a  note  ;  Leiit  v.  Padel-  of  Kingsley  v.  Bill,  9  Mass.  198,  is  not 
ford,  10  Mass.  338 ;  Clough  v.  Hoffman,    good  law. 

5  Wend.  500 ;  Brenty  v.  Todd,  Yelv.  68  a  «  Eemble  v.  WaUis,  10  Wend.  374. 

and  Metcalf  s  note  ;  Massey  v.  Raynor,  *  Board,  etc.,  v.  Erie,  etc.,  5  Rob.  866, 

23  Pick.  233  ;  Hatch  v.  White,  33  id.  518.  883-5,  41  N.  Y.  619. 

*  Bryan  v.  Heck,  67  N.  C.  333.  lo  Commissioners  v.  Vanderhilt,  31  N. 
»  Harwood  v.  Hilyard,  1  Freem.  347,  Y.  365,  368-370. 

2  Mod.  368;  Brookes^.  Dean.lljevmz,  ''  Commissioners  v.  Pilots,  31  N.  Y. 

145.  268-9. 

■*  Colchester  v.  Brooks,  7  Queen's  B.  '^  jmter  v.  Cushman.  7  Rob.  394. 

339,  53  Eng.  C.  L.,  Story's  Eq.  PI.  ^  363.  '^  js'orthfleet  v.  Cromwell,  3  Am.  Law 

'  Spooner  v.  Baxter,  16  Pick.  409.  Times  St.  Courts  Rep.  104,  Sup.  Ct.  N, 

«  Boot    V.    Bentley,   3   Johns.     307  ;  C.  Jan.  1870. 
Hughes  V.  Garner,   3  Younge  &  Coll. 
Excli.  Eq.  338. 

50 


the  debt,  lie  cannot  recover  of  another  co-surety  without  notice 
of  such  payment ; '  so,  where  goods  are  to  be  delivered  at  seller's 
option  in  ^.ugu&t  ;*  but  when  such  notice  is  once  given  it  cannot 
be  changed,'  but  he  may  give  notice  of  delivery  of  part  on  two 
days  if  it  is  to  arrive  by  two  ships.* 

If  one  covenant  to  do  an  act  within  a  certain  time  no  demand 
£  necessary/  If  A  covenants  generally  to  make  further  assur- 
ance to  B,  at  his  cost,  A  ought  to  give  notice  to  B  of  what  assurance 
he  will  make,  and  the  costs  thereof;  B  ought  to  tender  the  costs, 
and  then  A  make  it ;  but  if  A  shall  make  a  new  demise  to  B,  at 
his  costs,  B  ought  first  to  tender  the  costs,  for  he  knows  what  A 
is  to  do.*  Where  a  party  can  perform  at  either  of  two  places,  or 
without  designating  a  place,  or  at  any  time  he  chooses,  notice  of  the 
time  and  place  is  necessary.''  So  if  he  can  perform  by  delivery  of 
one  of  two  articles.*  So  on  an  agreement  to  deliver  articles  to  be 
manufactm'ed  at  a  particular  place,  without  the  time  being  specified.* 

Under  an  agreement  to  pay  A  for  certain  wood,  so  much  as  he 
shall  obtain  for  the  residue,  notice  of  the  amount  so  obtained  must 
be  averred  and  proved."  If  notice  to  two  parties,  even  jointly 
liable,  be  required,  notice  to  one  is  not  sufiicient,"  unless  they  be 
joint  agents  for  one  principal."'  One  who  claims  as  a  Jjonajide 
purchaser  must  allege  afiirmatively  that  he  had  no  notice  of  any 
facts  which  would  render  him  otherwise ;''  and  must  aver  and 
prove  payment  of  the  consideration."  A  pledgee  must  demand 
payment  of  the  debt  and  give  notice  of  the  time  and  place  at 
which  he  intends  to  sell,  unless  the  contract  waive  such  demand 
and  notice."     On  a  covenant  to  pay  such  sum  as  an  apprentice 

^  Northfleet  v.  Cromwell,  3  Am.  Law  v.  Ferrall,  13  Wend.  285  ;  Knight  v. 

Times  St.  Courts  Rep.  104.  Conn.,  etc.,  44  Vt.  473. 

«  Oath  V.  Lees,  3  Hurl.  &  Colt.  558  ;  « Aldrieh    v.  Albee,   1    Maine,  120  ; 

Stokes  V.  Brown,  2  Sweeny,  457  ;  but  Knight  v.  Conn.,  etc.,  44  Vt.  473. 

see  Nixon  v.  Nixon,  21  Ohio  State  R.  *  Newcomb  v.  Cramer,  9  Barb.  403 ; 

114.  Knight  v.  Conn.,  etc.,  44  Vt.  473. 

»  Oath  V.  Lees,  3  Hurl.  &  Colt.  558  ;  '"  Holmes  v.  Tmst,  Hob.  51,  and  Wil- 

but  see  Nixon  v.  Nixon,  21  Ohio  St.  R.  liams's  note. 

114.  "  Snyder  v.  SponaUe,  1  Hill,  567,  7 

*  Thornton  v.  Simpson,  6  Taunt.  556,  id.  427;  Wiswall  v.  McOown  2  Barb. 
1  Eng.  C.  L.  270. 

*  Braceh'idge  v.  Buckley  2  Price,  210,  ''  Bank  v.  Davis,  2  Hill,  452. 

213.  '^  Oellatnin  v.  Erwin,  Hopk.  48,  Kerr 

'  Heron  v.  Treyne,  2  Ld.  Ravm.  75v).     on   Frauds,   302-3  (Eng.  ed.) ;   Haugh- 
'  Spooner  v.   Baxter,  16   Pick.  409  ;    wont  v.  Murphy,  22  N.  J.  Eq.  531. 

Rogers  v.  Van  Hoesen,  12  Johns.  221 ;       '••  Hn/ghwout  v.  Myrphy,S2  N.  J.  Eq. 

Aldrieh  V.  Albee,  1  Maine,  120;  Cook    531  ;  Bice  v.  Bunce.  49  ^iiRsouri.  23L 

^^  MilUken  v.  Behon,  27  N.  Y.  3r5-6. 


CH,    iV  A.J         UUMri^AirNl     IIN     I'AKJiUUijAli    UAS±;S.  tSyO 

should  embezzle,  within  three  months  after  request  and  due  proof 
made,  the  comj)laint  must  aver  that  due  proof  was  made  as 
well  as  the  request.'  If  the  seller  is  to  deliver,  on  giving  the 
buyer  five  days'  notice  of  the  time  of  delivery,  such  notice  is  a 
condition  precedent  to  the  buyer's  liability,  and  if  he  sue  for  dam- 
ages, readiness  and  willingness  to  accept  and  pay  for  the  article 
on  the  receipt  of  such  notice  is  sufiicient." 

Nuisance.'  —  An  individual  citizen  cannot  maintain  an  action 
to  restrain  another  individual  by  injunction  from  an  act  alleged 
to  be  a  j)uhlic  nuisance  where  he  suffers  injury  only  in  common 
with  other  citizens."  A,  whose  game  is  enticed  away  from  his 
land  by  B,  is  liable  to  an  action  for  exploding  combustibles  so  as  to 
be  a  nuisance  to  B,  although  he  explode  the  combustibles  in  order 
to  frighten  the  game  away  from  B's  land,  and  prevent  him  from 
killing  them  or  enticing  other  game.* 

An  action  lies  by  the  attorney-general  to  restrain  a  municipal 
corporation  from  granting  licenses  for,  and  permitting  the  erection 
of  embankments  in  a  navigable  river,  if  the  persons  so  licensed  be 
also  made  defendants."  Where  a  public  bridge  darkened  plaintiff's 
premises,  caused  crowds  to  collect  in  front  of  them  and  in  some 
cases  to  pass  through  them ;  held,  plaintiff  showed  sufiicient  special 
damages  to  entitle  him  to  maintain  the  action.''  A  blacksmith 
shop  in  a  city  properly  carried  on,  and  in  a  proper  locality,  cannot 
be  restrained  as  a  nuisance ;'  and  so  a  steam  flouring  mill.®  A  board 
of  health  may  abate  a  nuisance  after  hearing  the  party  upon  notice.'" 
Where  one  is  injured  by  the  deposit  in  a  public  river,  of  mash  from  a 
brewery,  he  sustains  a  special  injury  which  entitles  him  to  maintain 
an  action  for  its  suppression ;"  but  the  person  bringing  such  suit 
must  own  the  bed  of  the  river.'''    What  is  a  public  nuisance  must  be 

'  Cookhay  v.  Woodward,  Hob.  217  a.  *  Manhattan,  etc.  v.  Barker,  36  How. 

=  Stokes  V.  Brown,  2  Sweeny,  457  ;  but  233,  7  Rob.  523  ;  Masterson  v.  Short,  7 

see  Nixon  v.  Nixon,  21  Ohio  St.  R.  114.  Rob.  241. 

2  Upon  the  subject,  generally,  see  Ad-  ^  Ihhottson  v.  Peat,  ^  Hurl.  &  Colt, 

dison  on  Torts,  Hill,  on  Torts",  Hill,  on  644. 

Remedies  for  Torts,  2  Story's  Eq.,  gi^  ^  Corporation,  etc.  v.  Att'y-Oen'l,  1 

921-930,  Smith's  Man.  Eq.  419,  Estee's  House  of  Lords  Cases,  439. 

PI.  and  Prac,  Kerr  on  Inj.,  Hill,  on  '  Knox  v.  Mayor,  etc.,  55  Barb.  404. 

Inj.,  Waterman  on  Inj.,  Moak's  notes  to  *  Doelner  v.  Tynan,  38  How.  176. 

Clarke's  Ch'y,  350,  ed.  1869,  title  "  Nui-  «  QUhert  v.  Showerman,  23  Mich.  448. 

eance,"  in  Burns's  Justice,  vol.  3,  30th  "  Reynolds  v.  Schultz,  34  How.  147 

ed.,  though  strictly  relating  to  criminal  Weil  v.  Schultz,  33  How.  9. 

proceedings,  may  be  consulted  to  advan-  "  Mayor  v.  Baumhurger,  7  Rob.  219, 

tage  ;  Poioers  v.  Stanton,  23  Mich.  429.  '-  Hudson  River  v.  Loeb,  7  Rob.  418. 


detennined  bj  general  and  lixed  laws.  A  city  has  no  right  to 
declare  any  particular  business  or  structure  a  nuisance,  in  such  a 
summary  mode  as  a  special  ordinance,  and  enforce  its  decision  at 
its  own  pleasure.'  A  public  school  is  not  a  nuisance  within  a 
clause  in  a  deed  that  it  shall  not  be  used  for  any  purpose  which 
renders  it  a  nuisance  to  adjoining  lauds.*  Buta  barn  with  a  cellar 
under  it  which  holds  manure  and  filth,  which  renders  the  enjoy- 
ment of  a  neighboring  house  uncomfortable,  is.  Otherwise  where 
no  smell  occur,  except  wliere  water  gets  in  on  a  special  and  extra- 
ordinary occasion.' 

A  city  is  liable  for  appropriating  the  waters  of  a  public  river, 
so  that  the  navigation  thereof  is  impaired,  and  the  plaintiff's  vessel 
thereby  detained.*  An  injunction  lies  to  restrain  the  carrying  on 
of  a  factory  emitting  sulphurous  gas,  destroying  vegetation,  com- 
pelling the  closing  of  windows,  and  irritating  and  inflaming  the 
throats  of  those  who  breathe  it.  It  is  not  necessary  it  should 
injure  the  health,  nor  is  it  a  defense  that  it  neutralizes  a  malaria 
in  the  neighborhood,  nor  that  it  existed  before  plaintiff  acquired 
his  property  or  built  his  house.' 

Oiiicer.  —  An  action  to  recover  damages  for  a  tort  will  lie 
against  a  public  ofiicer  acting  by  independent  authority,  and  not 
merely  as  an  agent,  for  a  violation  of  a  ministerial  duty  absolute, 
certain  and  imperative  in  its  nature,  imposed  upon  him  by  law 
and  specifically  due  to  a  particular  individual,  as  distinguished 
from  the  whole  public  —  as  against  a  supervisor  who  refused  to  lay 
a  land-owner's  claim  for  damages  for  lands  taken  for  a  public 
highway  before  the  board  of  supervisors ;  the  measure  of  damages 
is  the  amount  of  the  assessment.*  An  action  lies  against  an  ofiicer 
charged  with  a  ministerial  duty  to  recover  damages  for  the  man- 
ner of  his  doing  it,  if  the  doing  result  in  special  damages  to  the 
plaintiff,  although  several  methods  of  accomplisliing  the  result  are 
open  to  adoption,  and  he  is  called  upon  to  choose  between  them.'' 

An  ofiicer  who  has  two  warrants  is  not  liable  for  seizing  prop- 

'  Yates  V.  Milwaukee,  10  Wall.  498.  ^  Mulligan  v.  Elias,  43  How.  259. 

«  Harrison   v.    Good,   L.  R.,  11   Eq.  «  Clark  v.  Miller,  47  Barb.  38. 

338.  '  Sicks  v.  Dorn,  54  Barb.  172, 1  Lans. 

*  Pickard  v.  Collins,  23  Barb.  445.  81  ;  affirmed  on  appeal,  42  N.  Y.  47,  9 

■'  City  of  Philadelphia  v.  Collins,  68  Abb.  N.  S.  47.     This  case  led  to  the 

Peun.  St.  R.  106.     See  Powers  v.  Stan-  adoption  of  chapter  222  of  the  laws  of 

ton,  23  Mich.  429.  1870,  vol.  1,  p.  520. 


erty,  if  one  of  them  is  valid ;'  provided  he  justify  in  his  answer 
under  both."  But  if  he  first  arrest  a  party  on  an  invalid  writ 
he  cannot  arrest  him  again,  while  in  custody  thereunder,  on  a  valid 
one ;  to  permit  him  to  do  so  would  be  to  allow  him  to  take  advan- 
tage of  his  own  wrong/  An  officer  having  civil  process  is  liable 
for  breaking  an  inner  door,  where  several  persons  occupy  diiiereiit 
parts  of  a  house,  and  the  door  broken  is  a  hall  door/ 

Parent  and  Child.' —  The  father  of  a  child  may  maintain  an 
action  against  one  who  entices  him  from  his  service,  as,  also,  may 
a  master  for  enticing  his  apprentice.  He  can,  however,  recover 
only  the  actual  damages  for  loss  of  service  up  to  the  bringing  of 
the  suit,  and  is  not  entitled  to  vindictive  or  exemplary  damages." 
And  if  the  child  die  before  suit,  damages  for  loss  of  service  down 
to  the  time  of  his  death  is  all  that  the  parent  can  recover." 

The  reason  that  damages  can  only  be  recovered  up  to  the  com- 
mencement of  the  action  is,  that  it  was  then  uncertain  how  long 
the  child  or  apprentice  might  remain  away.  He  might  return, 
and  the  parent  or  master  have  the  benefit  of  his  services  in  the 
future.  The  rule  is  different  for  a  breach  of  contract,  for  there 
can  be  but  one  breach  and  one  recovery  therefor,  so  that  the 
action  once  vested  the  damages  must  be  entire.* 

It  should  be  stated,  however,  that  there  is  very  respectable 
authority  holding  that  where  a  servant  is  enticed  from  the  service 
of  his  master  the  latter  is  entitled  to  recover  for  loss  of  services 
during  the  entire  term  of  the  former,'  and  some  holding  a  parent 
is  entitled  to  recover  exemplary  damages.""     If  a  child  leave  the 

1  Hays  V.  Drake,  6  Gray,  387 ;  Hooper  83 ;  Heat  v.  Oillmer,  6  Iredell  (N.  C.) 

V.  Lane,  6  House  of  Lords  Cas.  443;  450;  Jamesw.  Christy,  \S  Mo.  lM;&\idi 

Peek  V.  Tiffany,  2  N.  Y.  451.  see  Harbin  v.  Green,  Hob.  189. 

^  Graliam  v.  JSarrower,  18  How.  144.  '  Nickerson  v.  Harriman,  38  Me.  277 ; 

^  Hooper  V.  Lane,  6  House  of  Lords  Cutting  v.  Seabury,  1  Sprague's  Dec. 

Cas.  443.  522,    reviewing  the  cases.    Mason  v. 

*  Swain  v.  Mizner,  8  Gray,  182,  dis-  Ship,  2  Cranch,  240,  270. 
tinguisliing  Lee  v.  Ounsell,  Cowp.  1.  *  Taylor  v.  Bradley,  39  N.  Y.  129  ; 

^  Upon  the   subject,   generally,    see  see  comments  thereon  and  correction 

Reeves'    Dom.  Rel,  Tyler's  Inf.    and  of  the  case,  including  opinion  of  Gro- 

Covert.,Kent'sConi.,Blackstone'sCom.,  ver,  J.,  1  Alb.  Law  Jour.  205,  339,  and 

Pars,  on  Cont.,  Add.  on  Torts,  Hill,  on  see  Bagley  v.  Smith,  10  N.  Y.  489. 
Torts,  Broom's  Com.,  Bouv.  Inst.  ^  Hays  v.  Borders,  1  Gill.  (111.)  4f) ; 

*  Hamhletan  v.  Veere,  2  Saund.  Rep.  Ford  v.  Monroe,  20  Wend.  210,  whicli 
169;  Covert  v.  Oray,  34  How.  450;  is  disapproved  in  Greene  v.  Hudson, 
Lems  V.  Peachy,  1  Hurl.  &  Colt.  518  ;  etc.,  28  Barb.  20,  and  Carey  v.  Berkshire, 
B.  B.  Co.  V.  Kelly,  31  Penn.  St.  R.  372  ;  etc.,  1  Cash.  478. 

Gilligan  v.  Mayor,  1  E.  D.  Smith,  460 ;  "*  Magre  v.  Holland,  3  Dutch.  (N.  J.) 
Luscom  V.  Osgood,  1  Sprague's   Dec.     86 ;   Dubois  v.    Allen,   Authon's   Nis 


service  of  liis  parent,  or  an  apprentice  that  of  his  master,  and 

after  he  has  done  so  another  induce  him  to  enter  his  service,  he 

is  not  liable  to  an  action  for  enticing  the  child  or  servant  from  the 

service  of  his  parent  or  master,'  although  in  a  complaint  for  the 

Bervices  he  would  be  liable,  for  them.''     A  father  is  not  entitled  to 

exemplary  damages  even  for  an  indecent  assault  upon  his  minor 

daughter,  with  circumstances  of  great  aggravation.' 

If  the  father  neglect  to  care  for  the  child,  leaving  the  mother  to 

do  so,  he  cannot  maintain  an  action  for  enticing  the  son  from  his 

service  ;*  nor  can  he  maintain  the  action  for  removal  of  a  child 

beyond  the  reach  of    a  writ  of  habeas  corpus^  when  it  appears 

that  he  had  not  an  absolute  right  to  its  custody,  and  that  it  was 

not  capable  of  rendering  any  services  of  value."     The  law  is  well 

settled  that  when  a  child,  after  arriving  at  majority,  continues  to 

labor  for  the  parent,  the  law,  considering  the  relation  of  the  parties 

to  each  other,  will  not  imply  a  promise  to  pay  the  child  for  such 

services,  and  vice  vei^sa  /  *  nor  by  a  child  to  pay  a  parent,  or  a 

parent  to  pay  a  child  for  support  or  clothing.'     A  promise  to 

pay  will  not  be  inferred  from  the  mere  fact  of  the  rendition  of 

the  services.*     But  when,  from  all  the  circumstances  of  the  case, 

it  is  apparent  that  there  was  an  understanding  for  compensation, 

an  action  to  recover  the  value  of  the  services  will  lie ;'  but  mere 

loose  declarations,  to  third  persons,  by  a  father,  that  he  intended  to 

pay  his  son,  are  not  sufficient,  and  it  is  error  to  permit  the  jury  to 

infer  a  contract  from  such  loose  declarations."     So  a  mother  is  not 

Prius,  12S  Van  Ness,  J, ;  Plummer  v.  Aernum,    43    Barb.    603 ;    Wilcox    v. 

Webb,  4  Mason,  380.  Wilcox,  48  id.  327 ;   Brush  v.  Blanch- 

'  Butter fiad  v.  Ashly,  2  Gray,  254.  ard,   ]  8   111.   46  ;    Hudson  v.   Lutz,  5 

''  BuMerfieiU  r.  Ashly,  6  Gush.  249,  2  Jones's  Law  (N.  C.)  217  ;  Davis  v.  Oood- 

Gray,  256.  enow,  1   Williams  (Vt.),  715  ;  Lantz  v. 

^  Whitney  v.  GiYc/icw^-,  4  Denio,  461 ;  Frey,ld  Penn.  360;  Mosteller's  Appeal, 

Hunt  V.  Wotton  T.  Raym.  260 ;  Cowden  30  Penn.   St.   473 ;  Harris  v.  Currier, 

V.  Wright,  24    Wend.  429 ;    Pack  v.  44  Vt.  468. 

Mayor,  3  N.  Y.  489.  «  Green  v.  Roberts,    47  Barb.   521 ; 

*  Wndell  V.  Coyf^eshall,  2  Met.  89.  Bundy  v.  Hyde,  50  N.  H.  117. 

^  Rising  v.  Dodgu,  2  Duer, 42.  *  Martin \.  Wright' sadmr.,\^\YeviA.. 

«  Green    v.   Roberts,  47   Barb.   521;  460;  Green  v.  Roberts,  47  Barb.  460; 

Livingston  V.  Ackesto,i,r)  Cow.  ^31, 5'32.  Robinson    v.   Raynor,  28    N.   Y.  497, 

">  Sharp  v.Cropsey,\\^&rh.22^,'i2Q,  below,  36   Barb.   128;    Conger  v.  Van 

228 ;    Williams    v.  Hutchinson,   5    id.  Aernum,    43    id.    603.     Tlie  case    of 

122-125,  3  N.  Y.  312  ;  Malthy  v.  Har-  Green  v.  Roberts,  so  far  as  it  seems  to 

wood,  12  Barb.  473  ;   Williams  v.  Finch,  hold  that  the  mere  rendition  of  services 

2    id.   208;    Robinson    v.    Cushman,  2  authorizes  a  jury  to  infer  a  promise  to 

Den.  149  ;  Moore  v.  Moore,  21  How.  211 ,  ]iav,  is  not  borne  out  bv  the  authorities. 

822,2':;4,  Ct.  App. ;  Boicenv.  ]3oiDen,2  ^'>  Hertzog   v.  Hertzog,  29   Penn.  St 

Bradf.  Surr.  Rep.  330 ;  Conger  v.  Van  465. 


liable  to  her  son  for  rent  of  real  estate  occupied  by  lier,  except 
on  proof  of  an  agreement  to  pay  rent  therefor.'  Proof  of  the 
pecuniary  circumstances  of  mother  and  son  is  not  admissil)le  on 
the  question  of  a  promise.'  The  rule  is  the  same  as  to  money 
advanced." 

And  the  rule  that  there  is  no  implied  agreement  for  compensa- 
tion between  parent  and  child  applies  between  persons  merely 
standing  in  such  assumed  relation  f  and  so  where  a  sister  of  de- 
fendant's wife  lived  and  worked  in  his  family  for  thirty  years.* 
Such  relation  is  established  by  evidence  that  the  parties  lived 
together  and  recognized  by  their  acts  the  existence  thereof.' 
Where  there  was  no  promise  by  a  parent  to  pay  a  child  for  ser- 
vices, but  his  executor  gave  a  note  therefor,  it  was  held  to  be  with- 
out consideration,  and  that  if  he  paid  it,  the  amount  so  paid  could 
not  be  allowed  on  an  accounting  before  the  surrogate."  A  father 
may  lawfully  contract  with  the  superintendents  of  the  poor  for  the 
support  of  an  indigent  child.' 

A  parent  is  not  liable  for  the  willful  act  of  his  minor  child,  as 

for  setting  a  dog  upon  animals.*    A  father  may  maintain  an  action 

for  clothing  furnished  a  minor  son,  nnemancipated,  lost  or  stolen 

at  a  hotel.*     A  father  may  emancipate  his  minor  child  so  as  to 

entitle  him   to  recover  for  his  services,  and  such  emancipation 

may  be  proven  by  circumstances,'"  although  there  be  evidence 

of  the  father's  dissent  from  the  son's  laboring  for  another,  and  that 

he  claimed  the  pay  for  his  services."     The  father  may  manumit 

his  infant  child  and  thereafter  become  liable  to  pay  her  wages." 

There  is  much  harshness  in  the  rule,  and  yet  there  is  great  doubt 

whether  a  mother,  as  such,  has  any  right  to  the  services  of  her 

infant  child  or  to  recover  therefor.     The  cases  and  dicta  are  very 

conflicting.'' 

J  Wills  V.  Wills,  34  Ind.  106.  '  Alger  v.  Miller,  56  Barb.  237. 

2  Earris  v.  Currier,  44  Vt.  468.  *  Tifft  v.  Tifft,  4  Den.  175,  ante,  thia 

^  Duffy  V.  Harrison,  2  Ara.  Law  Reg.  chapter  under  title  "  Animals." 

N.  S.  431 ;  Conger  v.  Van  Aernnm,  43  *  Dickinson    v    Winchester,  4  Cash. 

Barb.  602  ;    Andrews  v.  Foster,  17  Vt.  114. 

556, 1  Pars,  on  Cont.  531,  note  e;  Mnlomj  '"  Canover  v.  Cooper,  3  Barb.  115. 

V.  Scanlon,  53  111.  122  ;  Whaley  v.  Peak,  •'  Dodge  v.  Favre,  15  Gray,  82  ;  but  seo 

49  Missouri,  80 ;  Bundy  v.  Hyde,  50  Stiles  v.  Granville,  6  Cugh.  458. 

N.  H.  117.  '-^  Fort  v.  Gooding,  9  Barb.  371. 

*  Bundy  v.  Hi/de,  50  N.  H.  117.  "  In  the  affirmative,  Jones  v.  Jen  is,  4 

s  Daltoji  V.  BeildeJiem,  20  N.  H.  505  T/itt.  25  ;  Hammond  v.  Corbett,  50  N.  II 

«  Dye  V.  Kerr,  15  Barb.  444;  Riep-  501-  dicta,   Williams  v.  Hutchinson,  5 

herdv.  Fow/i^, 8  Gray,  152.  Barb.  123,  3  N.  Y.  312;    Graham  v 


Indeed,  it  maj  be  doubted,  strange  as  it  may  seem,  whether 
the  mother  of  an  illegitimate  child  is  not  entitled  to  recover 
while  the  mother  of  a  legitimate  one  is  not,*  for  a  bastard  has 
no  legal  father.  His  mother  is  the  only  parent  recognized,  as 
such,  by  the  law. 

Partition.'* —  A  tenant  in  common  in  reversion  cannot  main- 
tain a  suit  for  partition,  and  if  he  has  no  title  to  maintain  his  suit 
at  the  time  when  his  bill  is  filed,  he  cannot  carry  on  the  suit  by 
subsequently  acquiring  a  title  and  amending  the  bill  accordingly.' 
One  tenant  in  common  of  unoccupied  lands  may  maintain  the 
action,*  but  if  the  other  have  possession  adverse  to  the  plaintiff  he 
cannot.^  After  the  four  years  when  the  personal  representatives 
may  apply  for  leave  to  sell  to  pay  debts,  the  real  estate  of  deceased 
may  be  partitioned  though  he  was  indebted  at  his  death,  but 
sufficient  of  the  proceeds  will  be  retained  by  tiie  court  to  pay  all 
such  indebtedness." 

Although  if  it  affirmatively  appear  that  there  are  such  debts,  it 
seems,  a  partition  will  not  lie.''  One  tenant  in  common  who  has 
made  repairs,  paid  incumbrances,  taxes,  etc.,  in  good  faith,  on  par- 
tition will  be  allowed  therefor,  or  the  portion  improved  will  be  set 
off  to  him  on  proper  allegations  being  made  in  the  complaint  and 
the  facts  established,*  and  so  the  court  will  set  apart  to  each  that 


Kinder,  11  B.  Monr.  60  ;  Jones  v.  Buck- 
Up,  10  Ala.  604, 3  Bish.  Mar.  aud  Div.  5<§ 
537-8  ;  Burk  v.  Phillips,  1  Root,  48?'; 
Jones  V.  Buckley,  19  Ala.  604.  In  the 
negative,  Fairmount  v.  Si  title?',  54 
Peun.  St.  375  ;  see  Penn.  R.  R.  v.  Bun- 
tine,  id.  495 ;  dicta,  B'irtlcy  v.  Richt- 
meyer,  4  N.  Y.  46  ;  E.  B.  v.  E.  G.  B.,  28 
Barb.  803 ;  Commonwealth  v.  Murray, 
4  Binn.  487  ;  Morris  v.  Law,  4  Stew. 
&  Port.  123 ;  Jenness  v.  Emerson,  15 
N.  H.  486  ;  Freto  v.  Brown ,  4  Mass.  675. 
See  Moak's  note,  3  Eng.  Rep.  683,  as  to 
seduction.  But  as  that  action  is  found- 
ed on  the  relation  of  master  and  ser- 
vant, the  cases  are  not  7iecessarily 
authority  upon  this  question. 

'  Inhabitants  V.  Inhabitants,  12  Mass. 
387  ;  Wnf/ht  v.  Wrirjht,  3  id.  109  ;  Mat- 
ter of  Doyle,  Clarke's  Ch.  155,  and 
Moak's  note,  p.  160,  ed.  1869;  Inhabit- 
ants V.  Inhahitants,  13  Mass.  439  ;  Rex 
V.  Soper,  5  Term.  R.  378 ;  Rex  v.  Hop- 
kins, 7  East,  579. 

'  Upon  the  subject,  generally,  see  1 
Story's  Eq.  Jur.,  "§$5  046-658,  Adams's 


Eq.  329-333,  Smith's  Man.  of  Eq.  30, 
388-391,  3  Barb.  Ch.  Pr.  384,  314,  3 
Crary's  Prac.  93-164. 

^  Evans  v.  Bagshaw,  L.  R.,  5  Ch.  App. 
340,  L.  R.,  8  Eq.  469  ;  Stryker  v.  Mott, 
2  Paige,  387. 

*  Beebe  v.  Grifflng,  14  N.  Y.  335. 

5  Stryker  v.  Lynch,  11  N.  Y.  Leg. 
Obs.  116,  Gen.  T."5th  Dist. 

®  Warring  v.  Warring,  7  Abb.  473. 

■•  Disbrorc  v.  Folger,  5  Abb.  53 ;  Bo- 
gert  v.  Bogert,  45  Barb.  133  ;  Spring  v. 
Sanford,  7  Paige,  550 ;  Danvers  v. 
Dorrity,  14  Abb.  306;  Mattheics  v. 
Matthews,  1  Edw.  565 ;  Waring  v.  War- 
ing, 3  Abb.  246  ;  Hyde  v.  I'anner,  1 
Barb.  75. 

*  Qreen  v.  Putnam,  1  Barb.  500,  1 
Story's  Eq.  Jur.,  g^  656-8  ;  Town  v. 
Nee'dham,  3  Paige,  545 ;  St.  Felix  v. 
Rankin,  3  Edw.  323 ;  Conklin  v.  Conk- 
lin,  3  Sandf.  Ch.  64;  Hitchcock  v. 
Hitchcock.  Iloff.  21  ;  but  see  Skinner  v. 
White,  IIoi»k.  107  ;  Otis  v.  Cusack,  43 
Barb.  546  ;  Bvlen  v.  Burdell,  11  Abb. 
881 ;  Jackson  v.  Bradt,  2  Cai.  303. 


portiou  of  the  premises  most  convenient  for  liim.'  As  the  court 
adjusts  the  equitable  rights  of  the  parties  and  will  give  special  in- 
structions to  the  commissioners,  the  facts  should  be  alleged  in  the 
complaint  and  the  proper  relief  prayed  for."  A  tenant  in  the  occu- 
pation of  the  premises  under  one  joint  owner  is  a  necessary  party 
to  an  action  for  partition.' 

Partnership/  —  One  partner  may  maintain  an  action  against 
another  proceeding  in  violation  of  the  partnership  agreement  to 
compel  the  surrender  of  stereotype  plates  and  books*  and  for  an 
accounting.  It  has  been  held,  at  special  term,  that  an  action  will 
lie  by  a  partner  to  enjoin  an  individual  judgment  creditor  of 
another  copartner  from  selling  upon  execution  the  interest  of 
such  copartner  in  the  partnership  assets,  when  it  is  made  to 
appear  by  the  complaint  that  the  copartner  whose  interest  has 
been  seized  has  no  interest  in  fact  in  ihe  assets,  and  the  plaintiff 
oifers  to  submit  to  an  accounting  to  show  this  to  be  the  case  ;*  but 
we  do  not  think  the  case  can  be  sustained  upon  principle. 
It  is  the  duty  of  the  sheriff,  under  such  circumstances,  to  take 
into  his  possession  the  partnership  property.'  The  law  provides 
for  a  determination  as  to  whether  the  partner  against  whom  the 
judgment  is  individually  obtained  has  any  interest  by  a  sale  of 
that  interest  at  public  auction  by  the  sheriff,"  and  we  can  see  no 
reason  why  the  judgment  creditor  should  be  subject  to  the  vexa- 
tion, delay  and  expense  of  a  litigation,  to  arrive  at  the  same  result, 
perhaps  on  contradictory  testimony,  as  to  the  value  of  the  partner- 
ship assets,  where  the  finding  of  the  court  upon  the  question  might 
or  might  not  be  borne  out  by  the  results  of  a  sale  in  the  manner 
provided  by  law. 

If  the  articles  for  a  copartnership  prescribe  a  definite  period  for 

>  1  Story's  Eq.  Jur.,  §  650,  2  Barb,  see  ante,  title  "  Good-will  of  Business." 

Cli  Pr  299  •  Green  v.  Putwim,  1  Barb.  As  to  the  remedy  see  Story's  Eq.  Jur., 

509;  Story  v.   Johnson,   1   Y.  &  CoU.  Smith's  xMau.  Eq.  (1st  Am.  ed.)  348-353, 

Exch.  Eq.  538  ;  Lister  v.  Lister,  3  id.  Adams's  Eq.  Dauiell's  Ch  y  Prac.  (4tli 

540  Am.  ed.)  Barbour's  Ch'y  Prac. 

■'  'story  V.  Johnson,  2  Y.  &  Coll.  Exch.  '  Redfleld  v.  Wid'Ueton,  1  Abb.  N   S 

Eq   m)  15,  1  R^b.  79,  distinguishing  S.  C,  7 

■■'■  Cornish  V.  Gest,2  Cox,  27:  hnt  see  Bosw.  649.              .,   ,    ,^,    ^.y  a    oa^ 

Herhn-t.  v.  lieges,  10  Irish  Eq.  497,  as  '  Turner  v.  Smith,  1  Abb.  N  S.  304. 

to    tenant     being    entitled    to     costs  ■>  Smith  v.  Orser,  43,  !s.Y.  132,  aH  g, 

against  his  landlord.  43  Barb    187. 

•*  Upon  the    subject,   generally,  see  «  Crocker  on   Shoriffs   (Sd    ed.),    i^ij 

Story  on  Partnersliip,  Pars,  on   Part-  369,  438. 
nership,  and  Collyer  on  Partnership, 

51 


its  continuance  neither  party  can  dissolve  it  at  will,  and  the  expres- 
sion in  a  pleading,  of  a  desire  to  dissolve  a  copartnership  by  one 
partner  is  not  equivalent  to  an  acceptance  of  an  offer  by  the  other 
to  dissolve  it,  made  a  month  previously/  When  two  firms  engage 
in  a  joint  adventure  they  are  partners  therein.^  Generally,  where 
one  member  of  a  firm  gives  his  individual  obligation,  though  it 
be  known  to  be  on  a  partnership  transaction,  the  firm  will  not  be 
bound ;  but  the  rule  does  not  apply  where  there  is,  unknown  to 
the  creditor,  a  secret  partner/  If  one  partner  be  prosecuted  to 
judgment  for  a  firm  debt,  a  vacatur  of  the  judgment,  saving  the 
rights  of  the  partner  not  sued,  will  not  revive  tlie  cause  of  action 
against  him."  So  where  a  person  indebted  on  account  to  two 
partners  executes  a  mortgage  to  one  of  them,  to  be  transferred 
to  the  other  at  an  usurious  rate  of  interest,  to  raise  money  to  pay 
the  debt,  and  it  is  so  transferred,  and  the  proceeds,  to  an  amount 
exceeding  the  amount  of  the  debt,  received  by  the  firm  and 
credited  to  the  debtor  in  his  account,  the  debt  due  to  the  firm  is 
thereby  canceled.  ]^o  recovery  can  be  had  on  the  account 
although  the  mortgagor  successfully  defended  a  suit  in  equity 
to  foreclose  the  mortgage  by  setting  up  and  maintaining  the 
defense  of  usury/ 

But  one  partner  is  liable  for  fraudulent  representations  as  to  the 
responsibility  of  the  firm,  although  judgment  upon  the  debt  thus 
contracted  has  been  recovered  against  the  firm/  When  partners 
settle  their  partnership  affairs,  and  one  agrees  to  pay  the  other  a 
definite  sum  for  his  interest  in  the  partnership  assets  an  action 
lies  at  once  to  recover  it  f  otherwise,  even  upon  a  note  given  to  a 
stranger  when  the  partnership  is  not  dissolved/  Until  the  partner- 
ship affairs  are  adjusted,  two  partners  cannot  sue  a  third  for  their 

'  Smith  V.  Mulock,  1  Rob.  569.  in  New  York  by  section  136  of  tlie 

^  Dams  V.  Orove,  2  Rob.  134;  Matter  Code,  as  amended  in  18(56. 

of  Warren,  Davies's  Rep.  330.  *  Ayrault  v.  Oreen,  Seld.  notes,  July, 

^  Matter  of  Warren,,  Davies's  Rep.  1853,  p.  23 ;    see  cases   cited   Moak's 

320,  but  see  Neshitt  v.  Howe,  8  Irish  note  to  Clarke's  Ch.  84,  marrj.  pp. 

Law  Rep.  273.  *  Morgan  v.  Skidmore,  55  Barb.  2G3, 

*  Olmsted  v.   Webster,  8  N.  Y.  413 ;  affirmed   Court  of  Appeals,  Nov.  'TO,  3 

Robertson  v.  Smith,  18  Johns.  459 ;  see,  Alb.  Law.  Jour.  457  ;  see  also  Howard  v. 

also,  Broion  v.  Johnson,  13  Gratt.  644 ;  France,  43  N.  Y.  593. 

Collins  v.  Lemasters,  1  Bail.  348 ;  Treas-  '  Jackson    v.   Stopherd,  2  Cromp.  & 

urers  v.  Bates,  2  id.  362;    Sheehy  v.  Mees.  361. 

Mandeville,  6  Cranch,  253;   Vestri/  v.  ^  Buellr.  Coie,  54  Barb.  353. 
Ramsey,  L.  R.,  6  Com.  PI.  247.     The 
injustice  of  such  a  case  is  provided  for 


CH.  IV  A.]       COMPLAINT   IN   PARTICULAR   CASES.  4013 

share  of  tlie  profits  of  the  partnership ;  *  although  the  firm  is  liable 
upon  a  negotiable  instrument  given  for  the  purposes  of  one  of 
the  firm,  and  transferred  to  an  innocent  purchaser;"  the  other 
partner  is  not  liable  upon  such  an  instrument  made  by  one  partner 
before,  but  actually  delivered  after,  the  firm  was  dissolved.'  So 
where  the  party  taking  a  firm  note  had  knowledge  of  circumstances 
putting  nim  upon  inquiry  tending  to  show  it  was  not  given  for  a 
firm  debt ,'  notwithstanding  a  firm  does  business  in  the  name  of 
one  of  its  members  alone,  a  note  given  in  his  name  is  presump- 
tively an  individual  obligation/ 

If  a  client  employ  an  attorney  or  counsel,  who  subsequently 
takes  a  partner  the  partnership  cannot  recover  for  services  ren- 
dered unless  there  was,  to  the  client's  knowledge,  a  substitution  of 
attorneys  or  some  understanding  or  agreement  which  will  enable 
the  firm  to  recover/  The  rule  that  partnership  assets  will  l)e 
applied  to  pay  partnership  debts,  and  individual  property  to  the 
payment  of  individual  liabilities,  only  applies  to  actions  upon  con- 
tracts and  not  to  those  sounding  in  tort,"  nor  to  actions  by  a  retir- 
ing against  the  remaining  partner  to  compel  him  to  satisfy  the  part- 
nership debts  on  a  covenant  to  pay  them.  A  mere  covenant  to  pay 
the  debts  without  one  to  so  apply  the  assets  is  insufficient.*  One 
partner  may  maintain  an  action  against  another  for  dissolving  the 
partnership  before  the  time  stipulated,*  and  the  action  lies,  at  once, 
on  the  dissolution."  If  one  partner  become  a  lunatic  that  dissolves 
the  copartnership."  Several  intricate  questions  have  arisen  where 
one  individual  was  a  member  of  different  firms,  which  are  consid- 
ered by  a  recent  writer."  In  such  case,  where  the  accounts  between 
the  firms  have  been  stated,  the  creditor  firm,  without  the  dual 
partner,  he  refusing  to  join,  may  maintain  an  action  for  the  bal- 
ance, making  him  a  defendant ;"  otherwise  if  the  account  had  not 
been  stated.     In  such  cases  the  relief  must  be  sought  in  equity  ;'* 

'  Farrar  v.  Pearson,  59  Me.  561.  «  Bagley  v.   Smith,  10  N.   T.  489  ; 

*  Mechanics',  etc.  v.  Foster,  29  How.  Skinner  v.  Tinker,  34  Barb.  333. 
408  ;  Austin  v.  Vandermark,  4  Hill,  259  ;  »  Bagley  v.  Smith,  10  N.  Y.  489. 
Michigan,  etc.  v.  Eldred,  9   Wall.  544.  '"  Leaf  v.  Coles.  1   De  Gex.,  Mc  N.  & 

3  Qale  V.  Miller,  1  Lans.  451.  Gord.  170  ;  Kirhy  v.  Carr,  3  Y.  &  Coll. 

•*  National,  etc.  v.  Ingraham,  58  Barb.  Exch.  Eq.  1 84. 

290.  "  5  Am.  Law  Rev.  47 ;  see  also  1  Pars. 

*  Davis  V.  Peck,  54  Barb.  425.  on  Cont.,  (5th  ed.)  165. 

^  Morgan  v.  Skidmore,  55  Barb.  263.       '^  Cole  v.  Reynolds,  18  N.  Y.  74. 
'  Cory  v.  Long,  2  Sweeny,  491.  '*  Enqliss  v.  Furness,  4t  E.  D.  Smith,- 

587,  2  Abb.  333. 


altliougli,  perhaps,  since  the  supreme  court  has  equitable  as  well 
as  legal  jurisdiction,  the  distinction  is  not  very  material  if  the 
facts  be  sufficiently  stated/  It  is  no  bar  to  a  recovery  that  one  of 
several  defendants  has  become  possessed  of  a  right  of  action  prose- 
cuted against  him  and  his  co-defendants  unless  his  name  appears 
upon  the  record  as  plaintiff  and  as  defendant." 

A  valid  contract  may  be  made  by  A  with  himself  and  others. 
If  a  lirm  be  indebted  to  one  of  its  members  he  can  only  have  relief 
in  equity  on  a  statement  of  all  the  facts,  for  at  law  he  cannot  be 
both  plaintiif  and  defendant  ;*  but  his  assignee  may  sue  at  law.* 

Party  wall/ — If  one,  without  permission,  insert  the  beams  of 
his  house  in  the  wall  of  his  neighbor,  he  is  not  entitled  to  an 
injunction  to  restrain  his  neighbor  from  taking  down  such  wall, 
unless  he  have  acquired  a  right  to  support  by  adverse  user." 

Penalty.  —  In  an  action  to  recover  a  penalty  for  obstructing  a 
highway  the  complaint  need  not  aver  that  all  the  necessary  steps 
were  taken  to  lay  it  out  as  a  highway.  It  may  simply  be  averred 
as  a  highway,  and  proof  that  it  had  been  worked  and  used  by  the 
people  as  a  public  highway  for  fifteen  years  is  sufficient.'  It 
seems  where  a  penalty  is  one-half  payable  to  the  complainant  and 
the  other  half  to  the  State,  the  complainant  may  sue  for  the  whole 
penalty  in  his  own  name.*  ^ 

Performance/  —  Where  the  plaintiff  seeks  to  recover  of  the 
defendant  for  non-performance  of  a  contract,  he  must,  in  one  of 
the  methods  already  pointed  out,"  allege  performance  on  his  part 
of  all  concurrent  or  prior  acts."  On  an  agreement  to  deliver  stocks 
in  the  future,  stocks  "  watered  "  after  the  agreement  will  be  in 
compliance  with  the  terms  of  the  contract."     A  sale  of  goods  "  to 

*  Kingsland  v.  Brnisted.  2  Lans.  18.  *  Lynch  v.  Steamer,  27  Wis.  69. 

*  Blanchard  v.  Ely,  21  Wend.  342.  "  Upon  the  subject,  generally,  see  1 
»  Morley   v.   French,    2   Cush.   130 ;     Cliitty's   PI.,   title   "  Performance,"   3 

Traderfi'  Bank\.  Bradner,\'dBs.Th.^l^.  Conw.  Rob.  Prac.  571-.581,  4  id.,  title 

■*  Traders'  Bank  v.  Bradner,  43  Barb.  "  Condition  Precedent,"  5  id.,  title  "  Per- 

379.  formance,"  Estee's  PI.  and  Prac,  same 

*  Upon  the  subject,  generally,  see  title,  1  Wait's  Law  and  Prac.  939-944, 
ante,  title  "  Covenant,"  Washb.  on  title  "  Tender,"  and  see  index,  title 
Easem.,  2  W.arhb.  on  Real  E.st.  2G7,  "  Performance,"  Cow.  Tr.  (Kingsley's 
334,  Addi.son  on  Torts  (3  Eng.  ed.)  17:3-  ed.)  ^^  114,  217,  272,  et  seq.,  954,  957- 
4,  27G,  384,  Shear.  &  Redf.  Neg.,  §  58,  961,  963,  1135,  and  see  post. 

Bouv.  Inst.  (2d  ed.),  i^i^  1615-1618,  349i),  '«  Ante,  rnarg.  p.  234. 

Bouv.  Law  Die,  title  "  Partv  Wall,"  ••  8  N.  Y.  508,  11  id.  453,  1  Abb.  243 

Kerr  on  Inj.  (1st  Eng.  ed.)  37o-6.  247,22  How.  197,  id.  324-5, 21  N.  Y.  397. 

«  Robrrt.i  V.  White,  2  R<.1>  425.  "^  Currie  v.  White,  6  Abb.  N.  S.  352. 
Cluipmait  V.  Onti'S,  46  Barb.  313. 


n,  IV^A.J       COMPLAINT   IN   PARTICULAR   CASES.  405 

rrive"  is  a  mere  executory  contract,  conditional  on  their  arrival, 
nd  the  purchaser  may  reject  a  partial,  and  insist  upon  a  full  per- 
)rmance  of  the  contract.  If  less  than  the  amount  contracted  for 
rrivcs,  he  is  not  bound  to  accept  that  as  a  performance.*  A 
arty  is  bound  to  deliver  according  to  the  terms  of  his  agreement, 
Ithough  it  be  to  deliver  spirits  under  an  existing  law,  and  the 
3cretary  of  the  treasury,  under  its  provisions,  suspend  the  law 
[)  that  the  spirits  are  subjected  to  a  higher  duty.^  On  an  agree- 
ment to  sell  and  deliver  a  cargo  of  about  nine  thousand  bushels 
f  barley,  the  purchaser  is  not  bound  to  accept  a  cargo  of  less  than 
bout  that  number  of  bushels  f  but  if  a  smaller  cargo  be  accepted 
:  must  be  accepted  as  a  full,  and  not  a  part  performance.* 

Under  an  agreement  to  convey  a  piece  of  land  "  to  be  occupied 
)Y  a  Jewish  synagogue,"  the  grantees  are  entitled  to  a  deed,  in 
^hich  the  use  is  incorporated  as  a  condition  merely,  and  not  to 
ne  running  with  the  land,  rendering  them  liable  to  damages  if  it 
e  not  so  used.*  Under  an  agreement  that  the  lessor  is  to  complete 
artain  repairs  by  the  1-ith  of  June  next ;  and  that,  in  considera- 
!on  of  these  conditions  being  fulfilled,  the  lessee  is  to  take  the 
roperty  for  three  years  at  an  annual  rent,  the  repairs  must  bo 
ompleted  by  the  time  specified,  or  the  lessee  is  not  bound  to  take 
tie  premises."  If  the  vendor  absolutely  refuses  to  perform,  the 
endee  need  not  show  readiness  or  a  tender  of  the  purchase  price  ;* 
ut  in  other  cases  he  must  aver  and  prove  such  a  tender.* 

If  tender  or  offer  of  performance  was  for  any  reason  excused  or 
imecessary,  such  facts,  and  not  a  tender  or  offer,  should  be 
lleged,'  but  the  court  Iias  power  to  allow  such  amendment  and 
ermit  the  evidence  to  be  given."  On  a  sale  for  cash  it  is  not  a 
iifficient  tender  of  performance  to  offer  the  seller's  note."  The 
iile  in  such  case  is  different  from  that  where  a  debt  is  actually 
reated,  the  debtor  agreeing  not  to  plead  a  set-off.  On  a  sale  for 
ash  the  seller  is  not  bound  to  part  with  his  property  until  a 

^Reimers  v.  Riclner,  2  Rob.  11.  Pettit,  16  C.  B.  430,  81  Eng.  C.  L.  ) ;  Lri- 

-  Baker  v.  Johnson,  2  Rob.  570,  affirm-  farge  v.  Mansiield,  31  Barb.  345, 
a,  42  N.  Y.  126.  «  Andersons.  Sherwood,  56  Barb.  66 

^  Flnnngnnv.  Bemarest,Z^oh.l''lZ;        "^  Oakley  v.  Morton,   11    N.   Y.   25; 

se  Bradley  v.  Wheeler,  4  Rob.  18.  Baldwin  V.  Mimn,2  Wend.  399  ;  Lara- 

*  The  Congregation,  eta.  v.  Ealliday,  way  v.  Pcrkinfi,  10  N.  Y.  371. 

Rob.  386.  ^Hadey  v.  Blark,  28  N.Y.  438, 26  How. 

5  ridpy  V.  Mollett,  16  C.  B.  N.  S.  298,  97 ;   Van  Bmkirk  v.  Stow,  42  Barb  9 
11  Eng.  C.  L.  (overruling  Stratton  v.        *  Leven  v.  Sjnith,  1  Denio,  571. 


eompKance  with  the  contract  bj  the  purchaser.  If  a  contract  be 
assigned,  the  tender  must  be  to  the  assignee  and  not  the  assignor.* 

If  one  party  is  to  do  an  act  before  the  other  is  required  to  do 
something  else,  the  failure  or  neglect  of  the  former  is  a  waiver  of 
an  ofi'er  to  perform  by  the  latter,^  as  to  prepare  a  building  for 
mason  work, '  to  furnish  plans  and  set  out  work  ;  *  otherwise  if 
the  party  agree  to  do  what  shall  be  required  by  an  architect 
within  a  given  time,  under  a  certain  penalty  for  each  day  there- 
after if  it  was  not  completed,  even  though  he  require  an  impossi- 
bility, for  it  was  the  party's  own  folly  to  make  such  an  agreement.* 
It  seems  to  us,  however,  that  the  agreement  to  make  such  altera- 
tions as  might  be  required  should  have  received  a  reasonable 
construction,  and  to  have  been  held  to  require  such  only  as  could 
reasonably  and  properly  be  made,  after  being  required,  within  the 
time  specified. 

If  a  contractor  sustain  damages  by  being  compelled  to  pay 
higher  wages  in  consequence  of  a  building  not  being  ready  for  his 
portion  of  the  work  by  the  time  agreed  upon,  he  may  recover 
such  damages.'  Although  the  vendor  deliver  the  part  of  a  lot  of 
goods  sold  and  the  vendee  accept  them,  the  vendor  cannot  recover 
therefor  without  full  performance  or  an  ofier  thereof.*  If  one 
agree  to  make  three  models  he  cannot  recover  for  one  made  and 
delivered  without  offering  to  deliver  two  more.' 

Play. —  An  action  lies  to  restrain  the  exhibiting  of  a  play 
written  by  the  plaintiff ;  *  and  causing  it  to  be  publicly  acted  is 
not  such  a  publication  as  will  justify  one  in  committing  it  to 
memory  and  printing  or  playing  it.* 

So  one  has  such  a  property  in  a  painting  that  he  may  restrain 
the  making  or  sale  of  copies  thereof  by  photographing  or 
engraving." 

1  Dustan    v.  McAndrew,  10  Bosw.  v.  Beimtt,  5  Abb.  N.  S.  130,  36  How. 

130 ;  Cook  V.  Eelley,  9  id.  358.  222,  7  Rob.  530.     The  latter  case,  on  a 

'^  Thorp  V.  Ross,  4  Keyes,  546.  motion  to  dissolve  an  injunction,  and 

^  Roberts  v.  Bury  Commissioners,  L.  the  former,  so  far  as  it  held  one  had  a 

R.,  5  C.  P.  310,  325,  reversing   same  right  to  attend  a  theatrical  representa- 

case,  L.  R.,  4  C.  P.  755.  tion,  commit  the  play  to  memory  and 

*  Jones  V.  St.  Jo7tn's  College,  h.'R.,  6  act  it,  was  overruled  in  Palmer  v 
Queen's  Bench,  124,  126.  I>ev:itt,  40  How.  293. 

*  Allamon  v.  Mai/or, etc.,  43  Barb.  33.        *  Palmer   v.  Dewitt,   2  Sweeny,  530 

*  Moses  V.  Banker,  2  Sweeny,  267.         40  How.  293,  47  N.  Y.  532,  an  interest 
''  Sharpe  v.  Johnson,  41  How.  400.         ing  and  elaboratelv  considered  case. 

»  Keene  v.  Clarke,5  Roh.  38  ;  Palm,er       >"  Oertel  v.  Wood.'AO  How.  10. 


Pledge.' —  A  court  of  equity  has  no  general  jurisdiction  over 
actions  to  redeem  personal  property  pawned  without  some  otlier 
circumstances  rendering  its  interference  necessary.  The  remedy 
is  ample  by  tender  of  the  amount  due  and  a  possessory  action  to 
recover  the  articles  pledged,  or  damages  for  their  detention," 
except,  perhaps,  where  the  time  to  redeem  has  passed, '  or  property, 
such  as  stock,  is  transferred  to  the  name  of  the  pledgee,  and  is  not 
tangible.*  The  pledgee's  right  to  foreclose  the  right  to  redeem  the 
property  pledged  by  a  suit  in  equity  is  unquestioned.^ 

Prayer  for  relief/ —  A  purchaser  who  seeks  to  set  aside  a 
transaction  on  the  ground  of  fraud  should  specially  pray  in  his 
bill  for  the  repay  ment  of  repairs  and  im])rovements,  if  he  desire  to 
be  allowed  therefor.^ 

Promise. —  A  promise  by  a  debtor  to  pay  his  debt  to  a  third 
person  is  valid  and  may  be  enforced  by  such  third  person.* 

Protest.  —  In  an  action  against  the  acceptor  of  a  bill  of  exchange 
made  payable,  in  the  body  thereof,  at  a  particular  place  and  accepted 
generally,  it  is  not  necessary  to  aver  or  prove  presentment  at  the 
place  where  it  is  so  made  payable.' 

Publication.  —  The  publication  of  the  plaintiff's  name  on  a 
register  of  protested  paper  will  not  be  restrained,'"  nor  will  the 
publication  of  any  libel ;"  but  the  publication  of  private  or  other 
letters  will  be  restrained,"  and  so  one  may  maintain  detinue  for  a 
letter  sent  to  him.'' 

>  Upon   the  subject,  generally,  see  Bishop's   First  Book   of  the  Law,  §§ 

Edw.  onBailm.,  Story  on  Bailm.,  Met-  468-9. 

calf's  note  to'  Ratcli'jf  v.  Davis,  Yelv.  *  Elliott  v.  Mely,  10  Irish  Law  Rep, 

179  et  seq.  ;  2  Story's  Eq.  Jur.,  §i^  1080-  485,  overruling  Roache  v.  Johnston,  1 

1035,  Smith's  Man.  of  Eq.,  1st  Am.  ed..  Law  Rec.  N.  S.  100,  Hayes  &  Jo.  246  ; 

334-7.  but  see  Ferner  v.  Williams,  37  Barb.  9. 

^  Durant  v.  Einstein,  5  Rob.  423,  35  '•*  Fleming  v.   Newton,   1    House   of 

How.  223 ;  Hnskins  v.  Kelley,  1  Rob.  160.  Lords'  Cas.  363 ;  Adams  v    Leland,  30 

»  Smith's  Man.  of  Eq.  337.  N.  Y.  309. 

■*  Stoker  v.  Goggswell,  25  How.  267.  "  Brandreth  v.  Lance,  8  Paige,  24. 

5  2  Story's  Eq.,  ^  1033.  i'^  2  Story's  Eq.  Jar.,  §  944  ;  Woolsey  v, 

*  Upon  the   subject,   generally,   see  J'?//f(^,  11  How.  49,  4  Duer,  379  ;  .E'y?'^  v. 

Sto.  Eq.  PL,  Daniell's  Ch.  Pr.,  4th  Am.  Highis,  15  How.  45,  22  id.  199  ;  Folsom 

ed. ;  1  Barb.  Ch.  Pr.  37-40,  and  Index,  v.  Marsh,  2  Story,  100  ;  but  see  Wet~ 

title  "Bills;"  Adams's  Eq.,  notes  to  more  v.  ^coto^^,  3  Edw.  Ch.  515  ;  Hoyt 

Voorhies'  &  Wait's  Codes,  ^  142.  v.  McKenzie,  3  Barb.  Ch.  320  ;  Brand' 

■'Kerr    on     Frauds    and    Mistakes  ?'<?iA  v.  Za?i(V!,8  Paige,84  ;  6  N.  Y.  Leg, 

(Eng.  ed.),  279-285.  Obs.  345  ;  Glyn  v.  Caulfield,  3  McN.  & 

«  Lawrence  v.  Fox,  20  N.   Y.   268  ;  Gord.  463 ;  Prince  Albert  v.  Strange,  1 

Connor  v.  Williams,  2  Rob.  46  ;  Thorp  McN.  &  Gord.  25-. 

V.  Keokuk,  47  Barb.  439 ;  see  Moak's  ^^  Olioer  v.  Oliver.  11  C.  B.  N.  S.  139, 

note    to    Clarke's   Ch.   393,   marg.  p.  103  Eng.  C.  L. 


Quia  tiiwet.'  —  When  a  deed  has  been  delivered  so  as  to  vest 
the  title  in  the  grantee,  a  mere  surrender  thereof  will  not  revest 
the  title,  and  a  bill  quia  timet  will  lie  to  quiet  the  title  which 
was  intended  to  be  so  revested.'^  An  action  will  not  lie  to  set 
aside  proceedings  of  a  subordinate  tribunal,  void  at  law,  or  for 
restraining  or  staying  such  proceedings.^  Usually,  to  maintain 
a  bill  of  peace,  three  things  must  concur :  1st.  The  plaintiff 
must  have  the  actual  possession  of  the  premises.  2d.  That  pos- 
session must  be  disturbed.  3d.  His  right  must  have  been  pre- 
viously established  at  law.* 

A  bill  lies  to  compel  the  surrender  of  an  usurious  security,*  and 
the  bill  should  not  be  dismissed,  after  trial,  simply  because  it  does 
not  offer  to  pay  the  amount  actually  due.'  A  court  of  equity  will, 
in  many  cases,  decree  the  surrender  of  a  void  instrument,  which 
may,  after  great  lapse  of  time,  be  used  to  the  prejudice  of  the 
plaintiff;'  and  it  seems  that  this  is  so  even  where  the  instrument 
is  void  upon  its  face  ;*  although  the  rule  is  otherwise  in  an  action 
to  remove  a  cloud  upon  title." 

Quo  warrauto.'"  —  Although  a  quo  warranto  is  strictly  an 
action  at  law,  yet,  if  the  parties  do  not  object  to  its  being  tried  as 
a  suit  in  equity  until  after  the  case  is  opened,  a  jury  trial  is  waived, 
and  the  objection  cannot  afterward  be  taken." 

Railroad.  —  If  a  servant  takes  his  master's  baggage  by  railroad 
as  his  own,  the  master  cannot  maintain  an  action  for  the  loss  thereof, 
as  the  company  is  under  no  obligation  to  take  any  baggage  except 
belonging  to  the  passenger  himself;'^  but  a  servant  who  travels 
with  his  own  luggage  may  recover  although  his  master  paid  for  the 

'  Upon  the  subject  of  bills  g-Ji^'a  <iTO^<  ^  Hamilton  y.  CuTnmings,  1   Johns, 

and,  also,  those  in  the   nature  of  bills  Ch.  517;  Brigga   v.  French   1    Sumn. 

quia  timel.jiee  Story's  Eq.  Jur.,  Adams's  504  ;  but  see  Simpson  v.  Lord  Howden, 

Eq.  Jur.,  Smith's  Man.  of  Eq.  1st  Am.  3Myl.  &  Cr.  97,  1  Keen,  583. 

ed.  896.  9  Ward  v.  Dewey,  16   N.  Y.  519  ;  see 

2  Fonday.  Sage,  46  Barb.  109.  Hatch  v.  Citi/  of  Buffalo,  38  N.  Y.  276. 

^  Hyatt  V.  Bates,'d5  Barb.  308,  40  N.  '"  Upon    the   subject,  generally,  see 

Y.  164.  Code,  §  42S,  et  seq..  Met.  note  to  Bex  v. 

*  Shepley  v.  Rangeley,  Davies's  Rep.  Stanton^  Yelv.  190,  Bouv.  Law  Diet. 
242,  249.  title  "  Quo  Warranto,"  Tidd's  Pr. ,  same 

*  Beecher  v.  Ackerman,  1  Abb.  N.  S.  title,  5  Burn's  Just.,  30th  ed. ;  1  Estee's 
141,  1  Rob.  30.  PI.  and  Prac,  title   "  Quo  Warranto" 

^  Beecher  v.  Ackerman,  1  Abb.  N.  S.  Jacob's  Law  Diet.,  same  title. 
141,  1  Rob.  30;  Sutherland  v.  Rose,  47       "  People  v.  Albany,  etc.,  55  Barb.  344, 

Barb.  144.  affirmed,  5  Lans.  25. 

'  Daw  V.  Duke,  2   Swanst.  165,  and       '-  Becker  v.  The  Great  Eastern,  etc. 

cases  cited  in  note  L.  R.,5  Queen's  B.  241. 


CH.  IV  A.J       COMPLAINT   IK   PARTICULAR   CASES.  409 

ticket.'  If  a  servant  is  in  one  car,  and  tlie  master,  having  tickets 
for  both,  is  in  another  and  the  cars  are  separated,  the  servant  can- 
not be  ejected.''  A  raih'oad  company  which  is  about  to  lay  its 
track  in  a  public  street  or  highway,  may  be  restrained  from  so 
doing  by  an  adjoining  owner  who  owns  to  the  center  of  the  street 
or  highway,  until  his  damages  are  properly,  assessed  and  paid,'  otr 
may  maintain  ejectment  against  the  company  ;*  otherwise  in  the 
city  of  New  York,  where  the  title  to  the  streets  is  in  the  corpora- 
tion.' 

A  railroad  company  is  not  liable  for  baggage  left  in  his  seat  by 
one  wrongfully  ejected,'  nor  for  baggage  left  in  his  seat  by  a  passen- 
ger on  getting  out,  he  negligently  failing  to  find  the  same  carriage 
on  the  train  starting.^  Nor  for  an  overcoat  left  in  his  seat  by  a 
passenger,*  unless  it  came  to  the  possession  of  some  of  the  agents 
of  the  company.* 

Reasonable  time.'" —  In  many  cases  where  the  time  for  the 
performance  of  an  act  is  not  fixed,  the  law  declares  it  shall  be 
done  within  a  reasonable  time  according  to  the  circumstances, 
although  circumstances  in  the  nature  of  an  excuse  for  a  delay 
which  are  not  shown  to  have  been  mentioned  when  the  contract 
was  made,  nor  then  known,  or  presumable  to  have  been  known  to 
the  other  party,  cannot  be  considered  in  determining  what  should 
be  deemed  a  reasonable  time."  In  such  cases  the  complaint 
should  allege  that  the  plain tifiT  duly  performed  or  ofifered  to  per- 
form on  his  part,  or  that,  although  a  reasonable  time  had  elapsed, 
the  defendant  has  failed  and  neglected  to  perform  or  do  the  act 

^  MarsJiallY.  York,  etc.,  11  C.B.  655,  ^Glover  v.    London,    etc.,   L.   R.,  3 

73  Eng:.  C.  L.,  7  Eng.  L.  Eq.  519.  Queen's  Bench,  25. 

'  Jennings  v.  Great  Western,  etc.,  L.  '  Tallep  v.  The  Great,  etc.,  L.  R.,  6 

R.,  1  Queen's  B.  7.  C.  P.  44. 

3  Craiff  V.   Rochester,  etc.,  39  N.  Y.  >*  To'wer  v.  JJtica,  etc.,  7  Hill,  47  ;  see 

404,  39  Barb.  494  ;   Wager  v.  Troy,  etc.,  Mudgett  v.  Bay  State,  etc.,  1  Daly,  151. 

25  N.  Y.  527 ;   Williams  v.  N.  Y.  Cent.  »  Morris  v.  Third  Av.,  etc.,  1  Daly, 

R.  R.,  16  id.  97 ;  Kelsey  v.  King,  33  205. 

How.  39 ;   Ellicottville,  etc.   v.  Buffalo,  '"  Upon   the   subject,  generally,  see 

etc.,  20  Barb.  644;  People   v.  Laic,  34  Add.  on  Cont.,  6th  Eng.  ed.,942  ;  Benj. 


id.  494 ;  see  Heath  v.  Barman,  49  id 
496. 

*  Perrin  v.  J\r.  Y.,etc.,  36  N.  Y.  120 
Carpenter  v.    Qswego,  etc.,  24  id.  655 


Barb.   357,  38    id.    369,    25     id.   258 
Kelsey  v.  King,  33  How.  39  ;  People  v, 


on  Sales,  505,  510,  519,  525  ;  2  Pars,  on 
Cont.,  5th  ed.,  535,  661 ;  Smith's  Man. 
of  Com.  Law,  Isi  Am.  ed.,  88  ;  3  Conw. 
Rob.   Prac.  611 ;    Estee's  PI.  and  Pr., 


People  V.  Kerr,  27  N.  Y.  188,  37    title  "Time;"  Voorhies'  Code,  §  142, 


note  g,  10th  ed. ;  1  Taylor's  Ev.,  §  28, 

et  seq. 


Law,M  Bdivh.  49^;  N.Y.,  etc.  y.  Forty-       ^'^  New    Hn,ven,  etc.,  v.    Quintard,  6 
Second,etc.,  32  How.  481,  26  id.  68.  Abb.  N.  S.  128,  1  Sweeny,  89. 

52 


required.  Thus,  where  the  time  for  the  delivery  of  goods  sold  is 
not  specified,  it  is  a  presumption  of  law  that  the  parties  intended 
and  agreed  that  they  should  be  delivered  in  a  reasonable  time. 
So  where  the  time  for  the  delivery  of  goods  has  been  indefinitely 
extended,  the  time  for  performance  is  never  indefinitely  extended 
by  operation  of  law."  Where  the  time  for  performance  has  been 
indefinitely  extended,  the  right  of  either  party  to  sue  depends 
upon  a  demand  and  tender  of  performance  on  his  part.^  But 
where  a  party  agreed  to  deliver  "  as  required,"  it  was  held  no 
defense  by  the  buyer  to  an  action  for  non-delivery  "  as  requireci  " 
that  he  had  not  requested  delivery  within  a  reasonable  time.  If 
the  vendor  wished  to  get  rid  of  his  obligation  because  of  unrea- 
sonable delay  in  taking  the  goods,  it  was  for  him  to  ofier  delivery, 
or  to  inquire  of  the  buyer  whether  he  would  take  the  goods,  and 
he  had  no  right  to  treat  the  contract  as  rescinded  by  mere  delay.* 
Where  an  act  is  to  be  done  on  demand,  the  party  on  whom  the 
demand  is  made  has  a  reasonable  time  thereafter  in  which  to 
comply,^  and  so  where  a  party  covenants  to  pay  "  imnnediately  on 
demand,"  *  or  "  at  once  and  without  delay,"  '  A  promise  to  pay 
"  when  convenient "  is  a  promise  to  pay  within  a  reasonable  time ; ' 
otherwise  when  the  promisee  "  is  not  to  coTnpel  payment  but  to 
receive  it  when  convenient  for  the  promisor."  Where  a  reserva- 
tion of  timber  and  all  necessary  facilities  for  removing  the  same 
was  made  by  a  grantor,  it  was  held,  that  if  anytime  could  \>q  fixed 
by  the  grantee,  or  by  a  judicial  tribunal,  within  which  the  power 
of  removal  was  to  be  exercised,  it  should  be  in  the  future  by  a 
notice  to  the  grantor  to  exercise  his  power  of  removal  within  some 
specified  time,  and  he  could  not  be  deprived  of  it  by  an  allegation 
that  a  reasonable  time  for  removal  had  elapsed." 
Receiver." — The  abatement  of  a  suit  in  equity    does  not 


'  Jones  V.  Fowler,  37  How.  104. 
2  Neioton  v.  Wales,  3  Rob.  453. 
»  NeiDton  V.  Wales,  3  Rob.  453. 

*  Jones  V.  Gibbons,  8  Exch.  920. 

*  Briqhtly  v.  Norton,  3  Best  &  Smith., 
305,  113  Eng.  C.  L. 

6  Toms  V.  Wilson,  4  Best  &  Smith, 
442,  454,  116  Eng.  C.  L.  ;  Butler's  case, 
3  Coke,  286  ;  but  see  Schooner  Onrust, 
1  Benedict,  445  ;  Duncan  v.  Tophain,  8 
C.  B.  225,  G5  Eng.  C.  L. 


'  Sharp  V.  Johnson, i\  How.  400. 

8  14  Ohio  St.  R.  88,  10  id.  88,  Edw. 
on  Prom.  Notes,  154,  note  4. 

^  Barnard  v.  Gushing,  4  Mete.  230, 
234 

'"  Oregg  v.  Birdsall,  53  Barb.  402. 

"  Upon  the  subject,  generally,  see 
Voorhies'  Code,  §  142,  note  f,  lOth  ed., 
p.  153;  1  Estee's  PI.  and  Pr.,  363-4; 
Edw.  on  Receivers,  Kerr  on  Receivers, 
Wat.  on    luj.  854-8;  Kerr   on    Inj.,  3 


operate  to  divest  a  receiver  of  his  rights.'  The  receiver  of  an 
asnrious  borrower  maj  sue  to  recover  an  excess  of  interest  paid 
by  such  borrower;*  so  the  receiver  of  an  insolvent  insnranco 
company  may  recover  back  its  capital  or  property  distributed 
among  its  stockholders,'  and  may,  in  the  same  suit,  restrain 
creditors  of  the  company  from  proceeding  individually  and 
separately  against  such  stockholders.'  An  order  appointing  3 
receiver  will  not  vest  in  him  the  title  to  any  part  of  the  income 
of  a  fund  bequeathed  by  a  testator  whereof  the  income  was  to  be 
paid  to  the  debtor,  after  the  date  of  his  appointment,  although 
the  bequest  was  made  before  that  time.* 

It  is  not  very  clear  what  rights  in  a  fund  bequeathed  or  given 
to  the  debtor  for  the  support  of  himself  or  family  a  receiver 
takes.^  It  has  seemingly  been  held  that  he  takes  the  surplus,  if 
any,  if  the  debtor  created  the  trust,*  and  so,  if  created  by  a  third 
person,  provided  the  complaint  allege  the  existence  of  such  sur- 
]>lus,^  but  this  has  been  controverted  in  ISTew  York  under  the 
statutory  provisions  upon  the  subject.*  A  receiver  takes  the 
earned  but  not  the  unearned  perquisites  of  an  office." 

So  it  has  been  held  that  a  receiver  takes  a  judgment  recovered 
for  exempt  property,'"  but  the  contrary  has  since  been  held ; " 
otherwise  if,  after  the  money  is  received,  it  be  invested  in  property 
not  exempt." 

Redeinption."  —  After  default  in  the  payment  of  a  chattel 
mortgage,  the  mortgagor's-  only  remedy  is  by  a  suit  to  redeem, 
lie  can,  under  no  circumstances,  maintain  an  action  at  law  against 

Story's  Eq.  Jur.,  ^g  829-838  ;  Adams's  «  Campbell  v.   Foster,  35  N.  Y.  361  ; 

Eq.,  Smith's  Mau.  of  Eq.,  1st  Am.  ed.,  Rome  Excli.  Bank  v.  JEames,  1  Keyes, 

425-G;    Danieirs   Ch.  Pr.,  4tli   ed.,   1  589,603,604 

Barb.  Ch.  Pr.  658-674.  ^  MrCoun    v.   Borslidmer,    Clarke'a 

■     '  Woods  V.  Creaghie,  1  Hogan,  174,  1  Ch.  144. 

Barb.  Ch.  Pr.  678.  '»  Mnllory  v.  Norton,  21  Barb.  424. 

'■*  Palen  v.  Johnson,  46  Barb.  21.  "  Lafarge  v.  Herter,  9   N.   Y.   241 

3  Osgood  V.  Laytin,  37  How.   63,  3  Andreios  v.  Rowan,  2S  How.  126;  Til 

Keves,  521.  lotson  v.  Wolcott.  48  N.  Y.  188. 

•*  Graff  V.  Bennett,  2  Rob.  54,  31  N.  ''^  Wygant  v.  Smith,  2  Lans.  185. 

Y.   9;     Clute    v.   Bool,   8    Paige,   83;  '^  Upon    the    subject,  generally,  see 

Bryan  v.  Knickerbocker,   1  Barb.  Ch.  2    Story's    Eq.    Jur.,    ^g    1014-1020. 

427  ;  Donovan  v,  Fimi,  Hopk.  59.  103 0-1035, a;  Story's  Eq.  Pl.,^^  182- 

^  Harms   v.   Healey,  15  Barb.  296;  204;  Seton's  Decrees,  144-153,  m<f?\(7. p.; 

Stewart  v.  Foster,  1   Hilt.  505,  1  Pars.  Smith's  Mau.  of  Eq.  318,  329,  335-7 ; 

on  Cont.,  5th  ed.,  343,  and  note.  Adams's    Eq.    112-120,    390;    Moak'a 

^  Bryan  v.  Knickerbocker,   1   Barb.  Notes  to  Clarke's  Ch.  15,  marg.  p. 
Ch.  409. 

■>  Graff  V.  Bennett,  31   N.  Y.   9,  25  ; 
Rider   v.  Mason,  4  Sandf.  Ch.  351. 


the  mortgagee,  and  an  action  for  damages  in  fraudulently  or 
unfairly  selling  the  mortgaged  property  will  not  lie.  But  the 
mortgagee  can  only  extinguish  the  mortgagor's  equity  of  redemp- 
tion by  a  suit  to  foreclose,  by  a  sale  pursuant  to  the  mortgage,  or 
possibly  by  great  lapse  of  time.*  Where  the  mortgagee  is  fore- 
closing for  more  than  is  due,  the  mortgagor  may  maintain  an 
action  to  determine  the  amount  due  and  to  redeem.  If  the  mort- 
gagor have  died,  the  action  should  be  brought  by  his  heirs  and  also 
his  personal  representatives,'  and  technically  the  plaintiff  should 
oifer  to  pay  whatever  is  found  due  to  the  defendant.'  If  tlie 
mortgagor  have  conveyed  a  portion  of  the  premises,  his  grantee 
is  entitled  to  redeem,  but  he  is  not  entitled  to  an  absolute  deed  of 
the  whole  mortgaged  premises.*  A  second  mortgagee  may 
redeem  a  prior  mortgage  and  be  subrogated  to  the  mortgagor's 
rights  thereunder,*  and  so  may  a  judgment  creditor  before  sale  on 
his  judgment.*  A  mere  surety  is  not  entitled  to  redeem.'  A 
mortgagee  is  entitled  to  payment  in  full  before  he  can  be  required 
to  surrender  possession,  but  if  the  statute  of  limitations  has  run 
in  favor  of  some  of  the  debtors,  the  others  may  redeem  their  por- 
tions on  payment  of  their  portions  of  the  indebtedness."  The 
mortgagee  is  not  entitled  to  charge  for  erections  if  he  knew  of 
the  mortgage  ;  otherwise  if  he  have  in  good  faith  disavowed  the 
character  of  mortgagee,  and  claimed  in  hostility  to  sucli  a 
character.* 

In  an  action,  after  an  attempted  foreclosure,  to  redeem,  the 
grantees  of  the  purchaser  are  necessary  parties,  and  are  to  be 
treated  as  assignees  of  the  mortgage,  and  the  redemption  money 
is  to  be  distributed  between  them  on  the  basis  of  their  purchase.' 
If  a  mortgage  be  given,  and  the  mortgagor  afterward  many, 
the  wife  cannot  maintain  an  ejectment  against  a  purchaser  undei' 
a  foreclosure  of  the  mortgage,  to  which  the  wife  was  not  a  party  ; 


'  Stoddard  v.  Dennison,  38  How. 
296,  2  Sweeny,  55. 

-  Sutherland  v.  Rose,  47  Barb.  145  ; 
Western  Reserve  B'k  v.  Potter,  Clarke's 
(!h.  433.  marg.  p.,  and  cases  cited  in 
Moak's  notes ;  Beach  v.  Cook,  39  B.  360, 
28  N.  Y.  508  ;  Silshee  v.  Smith,  41  How. 
418. 

'  Silshee  v.  Smith,  41  How.  418;  but 
B«e  cases  cited  in  last  note. 


*  Pearce  v.  Morris,  L.  R.,  5  Cb.  App. 
227,  230. 

*  Jenkins  v.  Continental  Ins.  Co.,  12 
How.  06;  Pardee  v.  Van  Anken,  3 
Barb.  534,  6  N.  Y.  Leg.  Obs.  378. 

*  Dnucliy  v.  Bennett,  7  How.  375. 

■>  FJhworth  v.  Lockwood,  42  N.  Y.  89. 

8  For/al  V.  Pirro,  17  Abb.  113. 

9  Davis  V.  Dnfie,  18  Abb.  360, 8  Bosw, 
617,  691,  3  Keyes,  607. 


VJO..    IV   A.J         UUMJfljAilNT    IIN     t^AlillVVljAli    UASillS.  4id 

her  remedy  is  by  an  action  to  redeem.'  If  tlie  holder  of  a  second 
mortgage  be  not  made  a  party  to  a  foreclosure  of  the  first,  he  may 
redeem  the  rights  of  the  owner  of  the  first  without  paying  the 
costs  of  its  foreclosure,  and  may  foreclose  his  own  mortgage."  An 
irregular  sale,  though  it  does  not  bar  the  equity  of  redemption, 
operates  as  an  assignment  of  the  mortgage  f  and  where  the  owner  oi 
the  equity  of  redemption  is  insolvent,  no  presumption  of  payment 
arises  from  the  lapse  of  time.*  The  owner  of  a  prior  mortgage, 
in  possession  of  the  morgtaged  premises,  is  not  liable  to  an  action 
of  ejectment  by  a  purchaser  on  the  foreclosure  of  a  subsequent  mort- 
gage ;  the  only  remedy  of  the  latter  is  by  an  action  to  redeem.*  In 
an  action  to  redeem,  the  party  is  usually  given  six  months  to  do  so.' 

Keformation  of  contracts/  —  Mistake  as  to  a  contract  is  a 
ground  for  equitable  relief,  but  it  must  be  a  mistake  of  fact,  not 
of  law.  Mutual  mistake  as  to  its  construction  will  not  entitle 
either  party  to  relief  in  equity,*  The  rule  is  probably  otherwise 
when  one  party  knows  the  law,  and  intentionally  misleads  the 
other,  for  that  is  an  active  fraud ;'  and  where  the  law  is  well 
settled  and  not  doubtful,  the  court  is  prone  to  find  such  to  be  the 
case  ;"  otherwise  where  the  law  is  in  doubt. 

Although  when  a  reformation  of  a  contract  is  sought  the  mis- 
take must  be  mutual,"  for  the  reason  that  the  court  will  not  make 
the  parties  agree  to  what  they  did  not  mutually  intend ;  the  rule 
is  different  where  one  party  desires  to  rescind  or  be  relieved  from 
a  contract  which  he  entered  into  under  a  mistake  of  facts,  for  the 
minds  of  the  parties  do  not  meet."     In  order  to  reform  a  contract 

'  Smith  V.   Gardner,  42  Barb.  356,  to  Clarke's  Ch'j,  42,  marg.  p.,  where 

Moak's   notes    to    Clarke's    Ch.    252,  the  recent  cases  will  mostly  be  found  ; 

marg.  p.  Kerr  on  Frauds  and  Mistake,  1st  Eng'. 

2  Penhody  v.  Roberts,  47  Barb.  92  ;  ed.,  328-38G ;  see  also  note  to  Alexaa- 

Gagre  v.i?rews«CT-,  31  N.  Y.  218,  Moak's  der  v.  Croshie,    Lloyd  &   Gould,  149, 

notes  to  Clarke's  Ch.  252,  marg.  p.  Banks's  ed. 

*  Brohut  V.  Brock,  10  Wall.  519  ;  Bob-  ^  Midland,  etc.  v.  Johnson,  6  House 
inson  v.  Byaji,  25  N.  Y.  320 ;  Gage  v.  of  Lords'  Cases,  798. 

Brewster,  3  id,  227 ;  Stewart  v.  Hutch-  *  Moak's  note  to  Clarke's  Cli'y,  43, 

in.ton,  29  How.  181,  Moak's   notes   to  marg.  p.  ;  Story  v.  Conger,  36  N.  Y.  673. 

Clarke's  Ch.  252,  marq.  p.  "'  Note  to  Atioood  v. ,  5  Russell's 

*  Brohst  V.  Brock,  10  Wall.  519.  Ch'y,  150,  Banks's  ed. 

^  Wells  V.  Pierce,  3  Keyes,  102,  33  "  Moak's  notes  to  Clarke's  Ch'y,  42, 

How.  421.  marg.  p. ;  Mills  y.  Lewis,  %1  How.  4l8, 

«  Bolh's  V.  Duff,  41  How.  355.  55  Barb.  179. 

'  Upon  the  subject,  j^enerally,  see  1  ''^  Smith  v.  Mackin,S  Alb.  Law.  Jour 

Story's  Eq.  Jur.,  §§152,  169,  Smith's  471-472;  Mills  y.  Lewis, '67  How.  US. 

Man.  of  Eq.,  1st  Am.  ed.,  49,  55,  Adams's  55  Barb.  179. 
Eq.  84-85,  90,  166,  174,  Moak's  notes 


it  should  be  made  clearly  to  appear  what  the  real  contract  was. 
Its  terms  must  be  definite  and  precise ;  it  will  not  answer  for  a 
party  to  call  upon  the  court  to  spell  out  a  contract  or  to  impose  one 
upon  the  parties  which  they  did  not  intend  to  make ;'  but  where 
the  contract  was  vague  in  its  language  a  court  of  equity,  having 
regard  to  the  terms  of  such  agreement,  will  consider  the  surround- 
ing circumstances  and  conduct  of  the  parties  in  dealing  with  the 
property  comprised  in  it,  in  the  interval  between  the  making  of 
the  agreement  and  the  commencement  of  the  suit.  A  contract  to 
finish  a  house  as  d.esired  and  directed  by  "  A  "  is  sufficiently  definite 
if  the  dimensions,  style,  etc.,  be  arranged  and  partially  carried  out.' 

The  court  will  reform  a  contract  on  a  bill  filed  by  an  assignee.' 
"Where  the  parties  upon  the  conveyance  of  a  lot  120  feet  deep 
"to  and  including  a  stable  on  the  rear  of  the  premises,"  both 
supposing  120  feet  would  include  the  stable,  but  that  depth  only 
included  a  portion  of  it,  the  court  refused  to  reform  the  contract, 
and  order  a  conveyance  of  the  remainder  although  the  defendant 
owned  it.*  Where  the  terms  of  an  agreement  were  broad  enough 
to  include  a  fund  unknown  to  either  of  the  parties,  there  being 
no  fraud  the  court  refused  to  reform  it.*  Where  a  conveyance  of 
real  estate  is  delivered  in  accordance  with  the  terms  of  a  prelimi- 
nary contract,  a  complaint  which  asks  a  reformation  of  the  con- 
veyance should  also  allege  the  facts  showing  the  plaintifi"  is 
entitled  to  a  reformation  of  the  preliminary  contract,  and  praying 
a  reformation  thereof.' 

Religious  society.''  —  Individuals  claiming  to  be  trustees 
de  facto  of  a  religious  society  cannot  maintain  an  action  against 
those  in  the  actual  possession  of  its  lands  and  house  of  wor- 
ship.* Trustees  of  an  incorporated  religious  society  cannot  sue 
as  such  except  by  the  corporate  name  or  title  of  the  society ;'  nor 
will  an  action  lie  to  eject  a  clergyman  from  a  pulpit.'" 

'  Moak's  note  to  Clarke's  Ch'y,  42,  ^  Hawkins  v.  Jackson,  2  MacN.  and 

marg.  p.,  Kerr  on  Frauds  and  Mistake,  Gordon  5572. 

350,  1st  Eng.  ed.  "  Ghristianson   v.    Linford,   3    Rob, 

«  Oxford  V.  Provand,  L.  R.,  2  Privy  215. 

C.  Cases  135.  '  Upon  tlie   subject,  generally,  see 

'  Bentley  v.  Smith,  2  Keyes,  .842.  Tyler's  Ecclesiastical  Law,  and'  HoflF- 

*  White  V.  Williams,  48    Barb.   223.  man's  Ecclesiastical  Law. 

Inguaham,  J.,  dissented,  and  we  are  *  Bundy  v.   Birdsall,  29   Barb.   31 ; 

•nc'ined    to    think    bis    opinion    the  Parish  v.  Tooker,  id.  25(5. 

Bounder  one.    See  cases  cited  in  Moak's  '  Bundy  v.  Birdsall,  29  Barb.  31. 

notes  to  Clarke's  CU'y,  43,  marg.  p.  '"  Youngs  v.  Ransom,  31   Barb.  49, 


VH..    IV   A.J  (JUMi'ijii.ilN  X     J.IS      JTAliliUUI-iAri     UAOJ^S.  '±XO 

A  trustee  of  a  religious  society  cannot  be  sued,  by  bis  co-trustees, 
as  a  trespasser,  in  respect  to  tbe  property  of  tbe  society  until  be 
lias  been  divested  of  bis  cbaracter  and  authority  as  a  co-trustee. 
Bis  possession  is  tbe  possession  of  bis  co-trustees,  and  bis  rigbt 
3qual  to  tbat  of  tbe  otbers.  A  majority  of  tbe  trustees  cannot  by 
rule  or  resolution,  wbicb  tbey  may  adopt,  exclude  one  of  tbeii 
lumber,  and  so  divest  bim  of  bis  rigbts  as  to  make  bis  subsequent 
let  of  obtaining  possession  of  tbe  trust  property  a  tort.'  Tbe 
20urt  will  not  appoint  a  receiver  of  sucb  a  corporation  except  in 
:'are  cases.' 

Reiit.^  —  In  an  action  due  for  rent  upon  a  written  lease,  exe- 
nited  by  two  of  four  defendants,  parol  proof  of  tbe  existence  of 
m  understanding  between  plaintiff  and  all  tbe  defendants  to  tbe 
sifect  tbat  tbe  lease  should  be  executed  by  tbe  two  first-named 
iefendants  for  tbe  benefit  of  a  copartnership  to  be  formed  between 
ill  tbe  defendants,  wbicb  partnership  was  subsequently  formed,  is 
lot  admissible  for  the  purpose  of  fastening  an  original  liability 
mder  the  lease  upon  all  tbe  defendants.  A  defendant  will  not 
3e  held  liable  for  rent  as  equitable  assignee,  upon  the  ground  of 
3rivity  of  estate  existing  between  bim  and  the  lessor,  unless 
charged  as  sucb  in  the  pleadings.*  A  demise  to  a  third  person  of 
^remises  in  possession  of  a  tenant  under  a  valid  lease  is  void.  It 
s  neither  efiectual  to  disturb  those  in  possession,  nor  to  enable 
;be  lessee  to  evict  them,  and  is  no  defense  to  an  action  for  rent 
ipon  tbe  original  lease.  A  lease,  signed  as  agent  for  tbe  lessor, 
3y  a  person  not  having  authority  m  toriting,  cannot  create  the 
estate  purported  to  be  created  in  it,  and  is  void  by  statute.*  In  tbe 
iity  of  New  York,  a  tenant  who  holds  over  and  continues  in  posses- 
sion of  premises  leased  to  him  at  a  certain  rent,  with  tbe  assent  of 
:Jie  owner,  after  the  expiration  of  the  term,  without  any  new  agree- 
ment as  to  the  rent,  becomes  a  tenant  from  year  to  year  and  liable 
for  the  rent  at  the  same  rate,  up  to  the  first  of  May  next  after  sucb 
tenancy  commenced.*     Rent  which  falls  due  after  tbe  death  of 

a,  case  involving   many  principles  of  Conts.,  Smith  on  Cents,  and  Cliitty  on 

ecclesiastical  law.  Conts. 

1  Trustees,  etc.  v.  Stewart,  37  Barb.        •»  Mason  v.  Bresliii,  9  Abb.  N.  S.  427 

553.  2  Sweeny,  386. 

^  Groesheck  v. Bunscomb,  4:1  How.  SO^.        ^  Post  v.  Martens,  2  Rob.  437. 

3  Upon   the    subject,  generally,  see        *  Witt  v.  Mayor,  etc.,  5  Rob.  248. 
Taylor's  Landlord  and  Tenant,  Pars,  on 


the  landlord  goes  to  the  lieir  and  not  to  the  executor,  althongh 
chattels  were  included  in  the  lease.*  Though  rent  must  be 
demanded  before  sunset  to  take  advantage  of  or  save  a  forfeiture, 
yet  it  is  not  due  until  midnight ;  and,  therefore,  if  the  lessor  dies 
after  sunset  and  before  midnight,  the  rent  goes  to  the  heir  and  not 
to  the  executor;"  otherwise  if  the  lessee  be  ikhare  tenant  for  life, 
for  then,  if  he  live  until  the  beginning  of  the  rent  day  (at  which 
time  a  voluntary  payment  of  the  rent  might  be  made),  that  is  suf- 
ficent  to  entitle  the  executor  to  the  rent  rather  than  it  should  be 
lost.'  A  lessor  who  assigns  a  lease  after  rent  has  become  due  may 
recover  it  of  the  lessee,  for  that  does  not  pass  by  the  assignment  as 
an  incident  to  the  estate.*  An  under-tenant  is  not  liable  to  the 
lessee  for  the  rent,  but  an  assignee  of  the  lease  is ;  and  the  law 
presumes  that  one  who  occupies  is  an  assignee.^  A  lessor  cannot 
recover  upon  a  comphaint  for  use  and  occupation  when  it  appears 
frotn  the  evidence  that  there  was  a  lease  of  the  premises  to  other 
parties,  and  that  the  defendants  were  in  as  assignees  of  the  term. 
But  in  such  case  the  court  may,  on  the  trial,  allow  an  amendment 
of  the  complaint  to  conform  to  the  proof  and  permit  a  recovery 
for  the  rent  due  on  the  lease  when  it  does  not  appear  that  the 
defendants  are  surprised  by  tlie  amendment."  Although  an 
assignee  of  a  lease  is  liable  for  the  rent  which  falls  due  after  the 
assignment,'  still  he  is  not  liable  for  the  rent  of  a  new  story  put 
on  after  the  original  lease  under  a  new  agreement,  although  the 
use  of  the  story  passes  by  the  assignment.* 

The  assignee  of  the  lessor  is  entitled  to  recover  rent  falling  due 
after  the  assignment.'  If  the  assignor  of  the  lease  reserve  a  single 
day  of  the  term,  the  assignee  is  an  under-tenant  and  not  liable  for 
the  rent."    As  soon  as  an  assignee  assigns  he  ceases  to  be  liable." 

»  Fay  V.  Bailor  an,  35  Barb.  295.  v.  Hammett,  12  id.  253,  18  id.  G08 ; 

'  Duppa  V.  Mayo,  1   Saund.  287,  see  Main  v.   Feathers,  21   id.   64G ;    Van 

note  17,  p.  288  e  (6tli  ed.)  Rensselaer  v.   Bonesteel,    24    id.   365; 

*  Dtippa  V.   Mayo,  1    Saund.   288  e  Dcma.inville  v.  Mann,  82  N.  Y.  197. 
(Gth  od.)  8  Q()((  v_  Braunsdof,  2  Sweeny,  74. 

■*  PM^s  V.  Fan.  i)Msen,  4  Trans.  App.        ^  Main  v.   Feathers,  21    Barb.   646; 

399.  Van  Wtcklin  v.  Paulson,  14  id.  054  ; 

"  Bedford  v.  Terhune,  30  N.  Y.  453,  Marshall  v.  Moseley,  21  N.  Y.  280  ;  Fay 

Coit  V.  'Planer,  A  A.bb.  N.  S.  140,  7  Rob.  v.  Holler ain,  35  Barb.  295. 
413, 2  Sweeny,  78.  "'  Bans  v.  Morris,  35  Barb.  227,  36 

«  Bedford  v.  Terhune,  30  N.  Y.  453,  N.  Y.  579. 
27  How.  422.  "  Vansrhaaick  v.  Third  Av.  R.  R.,  25 

">  Graves  v.  Porter,  11  Barb.  592  ;  Van  How.  440 ;  Lufke  v.  Koch,  31  id.  383. 
Rensselaer  v.  Smith,  27  id.  104 ;  Carter 


An  action  for  use  and  occupation  lies  when  the  defendant  has 
actually  occupied  the  premises  under  the  relation  of  tenant  to  the 
plaintiff/  although  there  need  not  have  been  a  manual  occupation 
by  the  tenant  if  the  landlord  gave  him  the  power  to  occupy  the 
premises/ 

EepleYin." 

Request.* 

Reversioner.* —  The  owner  of  a  chattel  which  is  out  on  hire 
may  maintain  an  action  on  the  case  against  a  third  person  for  an 
injury  thereto,'  but  trover  will  not  lie  for  the  conversion  of  a 
chattel  under  such  circumstances/  The  owner  of  glands  in  the 
occupation  of  a  tenant  may  maintain  an  action  on  the  case  against 
one  who  digs  up  the  soil  and  removes  portions  of  it,  or  does  other 
permanent  injury,  and  the  tenant  may  maintain  a  separate  action 
for  the  injury  to  his  rights.' 

A  landlord  may,  during  the  term,  maintain  an  action  against 
the  tenant  for  an  injury  committed  by  him  to  the  freehold,*  but 
in  order  to  entitle  a  reversioner  to  maintain  an  action  for  an 
injury  to  his  reversion,  it  is  necessary  that  the  wrong  complained 
of  should  be  in  its  nature  permanent.  He  cannot  maintain  an 
action  for  loud  hammering  and  noises  adjoining  the  premises  by 
reason  whereof  the  tenant  quitted,  although  it  appeared  that  he 
was  afterward  unable  to  let  the  house  except  at  a  lower  rent." 
The  sale  of  his  interest-  by  a  reversioner  will  be  set  aside  in  equity 
upon  proof  that  the  amount  paid  was  disproportionate  to  the 
value  thereof." 

Reward.  — ■  Although  a  sheriff  or  other  officer  is  prohibited 
by  statute  from  taking  or  receiving  any  greater  or  other  fee  or 
reward  for  services  rendered  than  such  as  are  allowed  by  law,  a 
sheriff  who  goes  to  another  State  and  arrests  a  party,  for  whose 

'  Coit  V.  Plafier,  4  Abb.  N.  S.  140,  7        «  Hears  v.  London,  etc.,  11  C.  B.  N.  S. 

Rob.  413,  2  Sweeny,  78.  850,  103  Eng.  0.  L. 

2  Hall  V.  Western,  etc.,  34  N.  Y.  284.  '  Gordon  v.  Harper,  7  T.  R.  9 ;  Tan- 

^  See  ante.  Claim  and  Delivery.  c7-ed  v.  Allgood,  4  Hurl.  &  Norm.  438. 

*  See  ante,  title  Demand,  3  Conw.  «  Rof/ers  v.  Taylor,  1  Hurl.  &  Norm. 
Rob.  Prac.  445-6,  600-6Gj.  706  ;  Vandusen  v.  Young,  29  N.  Y.  9. 

*  Upon  the   subject,   generally,  see        ^  Ray  v.  Ayers,  5  Duor,  494. 

Add.  on  Torts,  title  Reversioner  ;  FIill.       ^'^  M win  ford   v.    The   Oxford,  etc.,  1 
on  Torts,  Story's  Eq.  Jur.,  1  Smith's     Hurl.  &  IS^orm.  35. 

Man.  Com.  Law,  96,  1st  Am.  ed.  "  Edwards  v.  Burt,  2  De  Gex,  McN.  & 

Gord.  55,  and  Perkins'  note  to  Am.  ed. 

63 


apprehension  a  reward  was  offered  bj  an  individual,  on  a  requisi- 
tion from  the  governor  of  this  State,  may  recover  the  reward  ;' 
so,  if  a  sheriff,  who  has  no  process,  in  reliance  upon  a  reward, 
captures  a  criminal  he  may  recover  it  ;*  otherwise  of  a  promise  of 
a  reward  to  an  officer  holding  a  warrant  for  the  apprehension  of 
a  criminal.*  One  who  employs  another  as  his  servant  to  arrest 
a  party  to  whom  a  reward  is  offered  may  recover  it  of  the  servant 
if  received  by  him.* 

The  person  who  gives  the  Jirst  information,  no  matter  to  whom, 
which  leads  to  tracing  the  apprehension  and  conviction  of  the 
offender,  is  entitled  to  the  reward,*  no  matter  M^hat  the  motive ;' 
and  one  who  avails  himself  of  information  received  from  another 
is  not.''  But  where  the  reward  was  offered  to  "  whoever  should 
give  such  information  as  should  lead  to  the  early  apprehension 
of  the  guilty  parties ;"  held  that  the  information  must  be  given 
not  in  mere  conversation,  but  with  a  view  to  its  being  acted  on, 
either  to  the  person  offering  the  reward  or  his  agent,  or  to  some 
person  having  authority  by  law  to  apprehend  the  criminal.  And 
where  the  communication  was  first  made  by  the  plaintiff  to  C  in 
conversation,  but  the  information  was  afterward  given  to  a  con- 
stable jointly  by  the  plaintiff  and  C,  it  was  held  that  both  ought 
to  have  joined  in  the  action.*  Where  a  jewelry  store  had  been 
broken  open,  watches  and  jewelry  stolen,  and  the  defendant 
advertised  "  a  reward  will  be  given  to  any  person  who  will  give 
such  information  as  shall  lead  to  the  apprehension  and  conviction 
of  the  thieves,  in  about  a  week  R  brought  one  of  the  watches 
to  the  plaintiff's  shop,  the  plaintiff  ga%"e  information  and  E.  was 
apprehended  the  same  day  with  another  of  the  stolen  watches 
upon  him.  xlfter  two  or  three  days  R,  being  in  custody,  told 
the  police  that  some  of  the  thieves  would  be  found  at  a  certain 

'  Gregg  v.  Pierce,   53    Barb.    387 ;  »  Tliatcher  v.  England,  3  C.  B.  254, 

England  v.  Davidson,  11  Ad.  &  Ell.  54  Eng.  C.  L. ;  Lancaster  v.  Walsh,  4 

856,  39  Eng.  C.  L.  R. ;  Smith  v.  Moore,  Mees.     &   Welsb.     16  ;     Jarndnn    v. 

1  C.  B.  438,  50  Eng.  C.  L.;  Present  v.  Exeter,  48  N.  H.  85. 

Bangs,   2    Edw.    95 ;    Pilie   v.    Ifow  *  Williams  v.  Garwardine,   4  Barn. 

Orleans,  19  La.  Ann.  274.  &  Ad.  621,  24  Eng.  C.  L. 

^  Davis  V.  3/m/iso??.,  43  Vt.  676. 5  Am.  '  Tliacher  v.  England,  3  C.  B.  254 

Rep.  315 ;   Russell  v.  Stewart,  44  Vt.  54  Eng.  C.  L. 

171.  *  LocMutrt  v.  Barnard,  14  Mees.  & 

^  Smith    V.  Whilden,  10  Barr.  49 ;  Welab.   674,  4  N.   Y.   Leg.  Obs.  77  ; 

Downs  V.  APGh/nn,  2  Hilton,  14.  Lancaster  v.  Walsh,  4  Mee".  &  Welsb. 

*  Pruitt  V.  Miller,  3  Ind.  16 :  Marking  16. 
V.  2feedy,  8  Bush  (Kj.),  22. 


CH.  IV  A. J       COMFLAIjSTT   IN   PAETICULAK   CASES..  419 

shop,  and  there  they  were  apprehended  a  week  afterward  and 
subsequently  convicted.  In  an  action  by  the  pLaintilf  for  the 
reward,  the  jury  having  returned  a  verdict  in  his  favor,  held 
that  the  information  given  by  the  plaintiif  was  not  so  remote  as 
that  it  could  not  be  said  to  have  "led"  to  the  apprehension  of 
the  thieves,  and  that  the  judge  had  properly  left  the  evidence  to 
the  jury  pointing  out  the  remoteness  of  the  information.'  Where 
an  advertisement  respecting  a  stolen  child  promised  a  reward  to 
the  person  who  would  give  information  where  the  child  was,  so 
that  he  might  be  restored  to  his  parents,  and  the  plaintiff  com- 
municated to  the  defendant  her  suspicion  where  the  child  was,  in 
order  to  put  the  matter  into  his  hands  for  his  benefit,  if  he  chose 
to  run  the  risk,  and  the  child  was  afterward  restored  to  its 
parents  by  the  exertions  of  the  defendant,  acting  upon  the  plain- 
tiff's communication,  held  that  the  plaintiff  could  not  recover 
from  the  defendant,  to  whom  the  reward  had  been  paid,  either 
the  whole  or  any  portion  of  it.'^  Where  the  common  council 
of  a  city  passed  a  resolution  that  a  reward  be  offered  to  any 
person  who  shall  give  information  so  that  any  person  shall 
be  convicted  of  setting  fire  to  any  building  for  the  purpose 
of  burning  the  same,  "  and  the  next  morning  an  advertise- 
ment was  published  reciting  that  several  houses  and  other 
buildings  had  been  recently  set  on  fire  and  offering  a 
reward "  to  any  person  who  shall  give  information  so  that 
any  perpetrator  of  these  outrages  shall  be  convicted ;  held 
that  the  resolution  and  advertisement  were  to  be  construed 
together  as  parts  of  the  same  transaction,  and  that,  by  the  true 
construction  thereof,  the  reward  was  offered  for  information  that 
would  lead  to  the  conviction  of  offenses  previously  committed, 
and  not  offenses  thereafter  committed.'  A  police  constable  appre- 
hended a  boy  having  in  his  possession  a  horse  and  gig  under  circum- 
stances of  suspicion  and,  discovering  that  the  boy  had  absconded 
with  them  from  Woolwich,  gave  notice  to  his  superintendent,  who, 
within  a  reasonable  time,  gave  notice  to  the  defendant,  the  boy's 
master.     After   the   boy's  apprehension,  but   before  the   master 

'  Turner  v.  Walker,    Law   Rep.,  1        '  FallkJc    v.    Barber,    1    Maule    & 
Queen's  Bench,  641,  affirmed  in  Excli.     Selwyn,  108. 

Chamber,  L.  R.,  3  Queen's  Bench,  301.        ^  Fi-eeman  v.  City  of  Boston,  5  Mete. 

56. 


received  notice  tiiereoi,  tne  latter  nad  issued  an  advertisement, 
offering  a  reward  of  ten  pounds  to  anyone  who  would  give  such 
information  as  should  lead  to  the  recovery  of  the  property  and  the 
apprehension  of  the  thief.  Held,  that  a  plea,  charging  the  police 
constable  with  a  breach  of  duty  in  neglecting  to  inform  the  defend- 
ant of  the  boy's  apprehension  until  after  the  issuing  of  the  adver- 
tisement, was  an  answer  to  an  action  by  the  constable  for  the 
reward. '  "Where  H.  made  a  written  agreement  with  F.  that  in 
case  F.  could  recover  certain  bonds  fraudulently  obtained  from  H., 
he  would  pay  $3,000  ;  and  F.  and  the  police  notified  H.  that  the 
bonds  had  been  recovered  and  were  subject  to  his  order,  and  they 
did  not  pass  through  the  hands  of  F. :  held,  in  a  suit  by  F.  against 
H.  to  recover  the  $3,000,  that  it  was  incumbent  on  F.,  in  order  to 
show  that  he  recovered  the  bonds  -w^ithin  the  meaning  of  the  agree 
ment,  to  show  that  the  police  recovered  them  through  information 
furnished  by  him ;  and  that  it  was  not  enough  for  him  to  show 
that  he  sent  communications  on  the  subject  to  the  police  before 
the  bonds  were  recovered,  it  appearing  that  the  police  had  received 
other  communications  on  the  subject  as  well  as  one  from  H.,  before 
the  bonds  were  recovered."  If  a  person  dealing  at  a  bank  acci- 
dentally leave  an  article  on  a  desk,  in  the  banking-room,  and  then 
publishes  an  advertisement  describing  it  as  lost,  and  promises  a 
reward  to  the  finder  upon  returning  it,  another  person  who,  while 
dealing  at  the  bank,  discovers  and  takes  it,  is  not  entitled  to  the 
reward  upon  returning  it  to  the  owner,  although  the  desk  stood 
outside  the  counters  of  the  bank  officers,  in  an  open  space,  accessi- 
ble to  all  persons  entering  the  room.'  One  who  offers  a  reward 
is  liable  therefor,  although  he  have  no  interest  in  the  matter.* 
The  defendant's  horse  having  been  stolen,  he  offered  a  reward  of 
$50  for  the  detection  of  the  thief.  The  plaintiff  informed 
him  that  D.  was  the  thief,  and  gave  some  information  tending 
to  sustain  this  charge,  and  the  defendant  had  D.  arrested 
therefor.  Held  prima  facia  evidence  to  sustain  a  recovery  for 
the  amount  of  the  reward  without  showing  D.'s  conviction  on  the 
charge.  If  D.  had  been  acquitted  or  released,  or  if  the  charge 
made  against  him  was  unfounded,  it  devolved  on  defendant  to 

>  NeviUe  v.  Eelley,  13  C.  B.  N.  S.  740,        »  Eincnid  v.  Enton,  98  Mass.  139. 
104  Eng.  C.  L.  *  Farman  v.  Parker,  1  N.  J.  310. 

»  Franklin  v.  Reiser,  6  Blatclif.  426. 


show  the  fact  to  rebut  the  presumption  arising  from  his  arrest  on 
the  plaintiff's  instigation.' 

The  sheriff  of  a  county  offered  a  reward  of  $250  for  the  discovery 
and  apprehension  of  the  murderer  of  B.  Plaintiff,  a  constable, 
without  warrant  arrested  one  who  was  afterward  tried  for  the 
offense,  convicted  and  executed.  M,  claimed  part  of  the  reward. 
Plaintiff  and  M.  submitted  their  claims  to  the  board  of  supervisors 
who  awarded  plaintiff  §150  and  M.  §100.  Plaintiff'  took  his 
order  for  $150  under  protest  and  drew  the  money,  M.  drawing 
$100  on  his.  In  an  action  by  plaintiff  against  the  sheriff*,  held, 
that  plaintiff"  and  M.,  having  referred  their  respective  claims  to  the 
board  of  supervisors,  and  consented  that  the  board  should  settle 
their  respective  rights  to  the  reward,  and  the  board  having  settled 
those  rights,  and  the  plaintiff"  having  received  the  amount  to 
which,  by  the  decision,  he  was  entitled,  lie  had  no  further  claim 
against  the  defendant.''  Where  moneys  had  been  obtained  from 
several  banks  by  forgeries,  and  they  offered  a  reward  of  $5,000 
for  the  apprehension  of  the  forger  and  the  recovery  of  the  moneys, 
or  a  proportionate  amount  for  any  part  thereof,  both  the  appre- 
hension of  the  forger  and  the  recovery  of  the  moneys  are  con- 
ditions precedent  to  the  payment  of  the  reward.*  The  criterion 
for  determining  who  is  entitled  to  a  reward  is,  who  is  the  person 
that  has  acquired  a  knowledge  of  the  facts  necessary  to  the  detec- 
tion or  discovery  of  the  thing  stolen  or  lost,  and  has  imparted 
such  knowledge  with  the  intent  and  for  the  purpose  of  bringing 
about  a  recovery  or  restoration  of  the  property,  taking  upon  him- 
self the  consequences  and  risk  of  a  failure,  and  acting  with  a  view 
to  the  reward  if  his  suspicions  and  disclosures  are  well  founded 
and  successful.  In  such  a  case  the  mere  officer  who  acts  in  the 
discharge  of  his  duty  will  not  be  entitled.  A  servant,  whose 
information  to  a  mistress  may  have  given  the  first  cause  of  sus- 
picion of  a  robber,  will  not  be  entitled  to  any  part  of  the  reward 
offered  for  the  restoration  of  stolen  property  when  such  informa- 
tion was  not  given  with  an  intention  of  inducing  the  mistress  to 
act,  or  of  the  servant  becoming  an  instrument  toward  its  recovery. 
Where  a  bank  was  robbed,  a  reward  was  offered  for  the  recovery 

'  Brennan  v.  Ilnff,  1  Hilt.  151.  =  Jones  v.  Phcenix  Bank,  8  N.  Y.  228. 

*  Prentv'S  v.  Farnham,  -ll  Barb.  519 ; 
Bee,  also,  Clinton  v.  Brown,  41  id.  226. 


of  the  property  and  a  proportionate  sum  tor  any  part,  and  ±>.,  the 
keeper  of  a  boarding-house,  from  information  given  by  his  wife, 
suspecting  a  boarder,  states  his  suspicions  to  a  police  officer  and 
requested  him  to  go  with  him,  and  the  police  officer  and  others 
were  led  by  B.  into  his  house  and  the  boarder' s  trunk  pointed 
out,  which,  on  being  opened,  contained  the  rnoney,  held,  B.  was 
entitled  to  the  whole  of  the  reward.' 

Where  the  defendant  offered  a  reward  "  to  any  person  or  per- 
sons who  will  give  such  information  as  will  lead  to  the  apprehen- 
sion and  conviction  of  "  a  criminal,  such  reward  is  not  payable  to 
one  who  never  saw  the  offer  until  after  the  apprehension  of  the 
criminal,  and  who  did  nothing  tending  to  promote  such  appre- 
hension after  the  offer  of  reward  was  made,  notwithstanding  the 
apprehension  was  effected  in  consequence  of  information  given  by 
him  before  the  reward  was  offered,  and  notwithstanding,  also, 
that  he  was  active  in  procuring  and  giving  evidence  and  commu- 
nicating facts  to  the  prosecuting  officers,  after  such  apprehension 
and  on  the  trial,  in  the  hope  and  expectation  of  receiving  such 
reward.  Such  an  offer  proposes  compensation  for  what  shall  be 
done  thereafter,  not  for  what  has  been  done  already ;  and,  unless 
information  he  thereafter  given  which  leads  to  both  apprehension 
and  conviction,  the  reward  is  not  payable." 

Where  a  reward  is  offered  to  a  particular  class  of  persons  —  as 
bank  officers  —  one  not  of  that  class  who,  with  the  approbation 
and  encouragement  of  the  promisor,  complies  with  the  terms  of 
the  reward,  is  entitled  to  it.' 

Where  a  reward  was  offered  for  a  parcel  of  bank  bills  which 
had  been  lost,  it  was  held  that  the  finder  of  a  part  was  entitled  to 
&pro  rata  proportion  of  the  reward.*  The  finder  has  a  lien  upon 
the  property  found,  and  may  retain  the  possession  until  the  reward 
offered  is  paid.'  So  one  who  finds  property  lost  and  necessarily 
expends  money  in  preserving  and  storing  it  —  as  logs  can-ied 
away  by  a  flood,"  a  sunken  canal  boat  raised.'     An  offer  of  a 


'  City  Hank  v.  Bnngn,  2  Edw.  Ch.  94. 

'  FilrJi  V.  Snr-dikrir,  38  X.  Y.  2-t8  ; 
Marking  v.  Needy,  8  Bush.  (Ky.)  22 ; 
Marvin  v.  Treat,  37  Conn.  96,  but  wee 
D'lirkins  V.  Snppincfton,  26  Iiul.  199; 
liusxell  V.  Steinart,  44  Vt.  170,  that  one 
nei'd  not  know  of  the  reward  when  the 
service.^  are  rendered  to  entitle  him  to  it. 


3  National,  etr..,v.  Il.irt,  55  111.  62. 

*  Summes  v.  Frazer,  6  Mass.  344. 

5  SJieldon  v.  Sherman,  42  Barb.  368, 
42  N.  Y.  484. 

«  Baker  v.  Eoag,  7  N.  Y.  555,  562,  7 
Barb.  113. 

Wanvrin  v.    Exeter,  48  N.   H.  84 
Uorson  v.  Pike,  16  lud.  140. 


rewai'd  is  a  conditional  offer,  which  may  be  revoked/  Its  terms 
should  be  complied  with  within  a  reasonable  time,  in  order  to 
entitle  one  thereto."  In  an  action  to  recover  a  reward  for  tlie 
detection  and  conviction  of  an  offender,  the  record  of  conviction, 
although  presumptive,  is  not  conclusive  evidence  of  his  guilt.*  A 
reward  may  be  recovered,  of  a  town  authorized  to  offer  it,  in  an 
action  of  assumpsit.  A  reward  promised  by  a  jailer  for  informa- 
tion whereby  a  prisoner,  who  had  escaped  from  his  custody,  might 
be  recaptured,  cannot  be  recovered  by  one  who  gave  the  required 
information,  hut  assisted  in  the  esoapi^  and  withheld  this  fact  at 
the  time  the  reward  was  offered.* 

Sale/  —  If  the  purchaser  designates  a  carrier,  and  the  goods,  by 
mistake,  be  delivered  to  another  no  title  passes."  A  complaint 
which  alleges  that  plaintiffs  sold  certain  goods  to  defendants,  who 
threatened  to  return  them  on  the  ground  that  they  did  not 
answer  the  contract,  and  then  without  averring  that  plaintiffs 
refused  to  receive  them,  and  claimed  to  hold  defendants  liable 
■under  the  contract,  notified  them  that  plaintiffs  would  sell  the 
merchandise  and  hold  them  responsible  for  any  loss;  that  defend- 
ants sent  the  merchandise  to  the  plaintiffs,  who  sold  the  same  for 
the  best  price  they  could  get  and  rendered  an  account  of  the 
sales,  showing  the  amount  due,  is  defective  for  not  averring  that 
defendants  acceded  to  the  plaintiffs'  terms  specified  in  the  notice, 
nor  that  plaintiffs  sustained  any  loss  by  a  re-sale.'' 

A  contract  for  the  sale  of  a  certain  number  of  Buenos  Ayrea 
dry  hides,  "  to  amve  by  vessel  or  vessels  within  sixty  days,"  is 
not  confined  to  those  arriving  by  the  vendor's  vessels,  but  includes 
any  hides  of  the  kind  described  arriving  within  the  time  limited 
b}^  any  vessels.  The  vendee  upon  j)roof  that  hides  of  the  descrip- 
tion and  number  specified  had  arrived  in  vessels  from  Buenos 
Ayres  within  the  sixty  days,  and  were  for  sale  in  open  market,  is 
entitled  to  recover  damages  for  a  breach  of  the  agreement ;'  other- 

'  Loring  v.  City  of  Boston,  7  Met.  409.  Story  on  Sales,  Benj.  on  Sales,  CMtty 

*  Mead  v.  City  of  Boston,  3  Cush.  on  Cont.,  Pars,  on  Cont.,  Add.  on  Cont.j 
iOi;  hnt  see  Burke  V.  Wills,  diCal.  60,  Smith  on  Cont.,  Broom's  Com.  Law, 
that  it  is  no  evidence  the  person  con-  Smith's  Man.  Com.  Law ;  and  see  this 
victed  was  the  guilty  person.  chapter,  post,  title  Vendor  and  Vendee. 

3  Janwin  v.  Town  of  Exeter,  48  N.  H.  «  Mills  v.  Lynch,  3  Rob.  42. 

85.  ^  Sulten  v.  Gronin,  3  Rob.  493. 

*  Hrissourv.  Doe,  dS  Maine,  45.  ^  Frnser    v.   llvrheck,  4   Rob.   179; 

*  Upon   the   subject,  generally,   see  Fischel  v.  Scott,  15  C.  B.  69  (80  Eng.  C. 


wise  of  goods  on  a  particular  ship  to  arrive.'  On  a  sale  of  an 
article  "  to  be  paid  for  if  it  works  well,"  if  it  is  useless  and  does 
not  work  well  the  purchaser  is  not  liable  though  he  do  not 
return  it  or  offer  to  do  so^  on  a  sale,  with  the  privilege  of  re-as- 
signing after  a  trial  of  the  article  ;  the  acceptance  of  the  re-assign- 
ment is  a  waiver  of  the  trial.  So  if,  after  the  sale,  the  vendor 
promise  to  furnish  the  vendee  with  the  means  for  a  trial,  the 
promise,  though  without  consideration,  is  an  answer  to  the  want 
of  trial ;'  but  if  the  vendor  has  made  no  such  promise,  the  vendee 
must  try  the  article  within  a  reasonable  time.*  If  one  lend  goods, 
to  be  paid  for  if  damaged,  and  they  are  damaged,  he  may  sue  for 
goods  sold  and  dehvered,^  A  receipt  for  five  barrels  of  fish,  to  be 
paid  for  when  sold,  imports  a  sale,  and  they  will  be  presumed 
after  a  reasonable  time  to  have  been  sold.*  If  a  sale  be  upon  con- 
dition that  the  goods  may  be  returned,  they  cannot  be  if  their 
value  be  impaired  by  improper  use  ;^  and  if  the  property  be  returned 
by  the  vendee  who  conceals  the  injury,  although  the  vendor  can- 
not recover  the  contract  price  because  of  the  rescission,  he  may 
recover  the  damages  for  the  injury/  if  it  occur  through  the  fault 
or  negligence  of  the  vendee,"  provided  it  be  secret  and  unknown 
to  him  when  he  accepted  the  return.'*  On  a  sale  with  privilege  of 
return,  the  vendee  is  excused  from  returning  if  the  property  escape 
without  his  fault."  An  agreement  to  sell  and  deliver  a  crop  of  corn, 
then  growing  on  thirty  acres,  "  to  be  delivered  in  merchantable 
order,"  is  an  agreement  to  sell  only  the  merchantable  corn  which 
grows  on  the  thirty  acres."  On  an  agreement  for  a  cash  sale,  the 
vendee  cannot  tender  the  vendor's  note."  On  a  sale  with  a  pro- 
viso that  the  title  shall  not  pass  until  payment,  if  the  vendor 
resume  possession  he  cannot  sell  the  article  at  private  sale  without 

B.  N.  S. 


L.) ;  Hale  v.  Rmnson,  4  Com 
85,  (93  Eng.  C.  L.) 

'  Fraser  v.  Harheck,  4  Rob.  181 ; 
Shiflds  V.  Pettie,  4  N.  Y.  122  ;  Johnson 
V.  McDonald,  9  Mees.  &  Welsb.  600 ; 
lieiiiers  v.  Ridners,  26  How.  392,  3 
Rob.  22  ;  Lovett  v.  Hamilton,  5  Mees. 
&  Welsb.  639  ;  Havemyer  v.  Cunning- 
ham, 35  Barb.  515 ;  Vernede  v.  Weber, 
1  Hurl.  Si  Norm.  311. 

'  Grounsellv.  Lamb,  1  Mees.  &Wels. 
352  ;  Cotmnnv.  Paddon,2  Cromp.,Mees. 
&•  Kosc.  547,  5  Tyrwh.  535  ;  but  see 
McDonald  v.  Pierson,  38  Barb.  128. 

'  Young  v.  Hunter,  6  N.  Y.  203. 


4  McDonald  v.  Pierson,  38  Barb.  128. 

*  BrancM  v.  Nash,  1  Mees.  &  Wels. 
545;  Tvrwh.  &  Gr.  916,  and  see  Stnddy 
V.  Saunders, 5  B.  &  Cr.  ( 1 1  Eng.C.  L.)  682. 

6  McArthur  v.    Wilder,  3  Barb.  66  ; 
Depew  V.  Keyser,d  Duer,  335;  Hay 
ley  V.  Goldsmith,  Peake's  N.  P.  56. 
'  Bay  V.  Thompson,  12  Cash.  281. 

8  Coon  V.  Reed,  1  Hilton,  511, 

9  Hunt  V.  Wyman,  100  Mass.  198. 
'"  Lord  V.  Kenney,  13  Johns.  219. 
"  Hunt  V.  Wyman,  100  Mass.  198. 

'•^  Hamilton  v.  Oanyard,  34  Barb.  2(14, 
3  Keyes,  45. 
>«  Leven  v.  Smith,  1  Denio,  571. 


notice  to  tlie  vendee ;'  and  the  vendee  may  at  any  time  tender 
the  deficiency  when  he  is  entitled  to  the  property.^  There  is  a 
seeming,  but  not  a  real  conflict  in  the  cases  where  a  vendee 
accepts  property  under  an  executory  contract  for  the  sale  thereof. 
In  an  executory  contract  to  sell  property  of  a  particular  descrip- 
tion, without  warranty,  the  vendee  must  examine  it  wdthin  a 
reasonable  time,  ascertain  the  defect,  if  any,  notify  the  vendor 
thereof,  and  offer  to  return  it  ;*  otherwise  if  there  be  a  warranty  * 
or  fraud/  An  agreement  to  make  "  three  or  four"  models  is 
satisfied  by  the  making  of  three  at  the  maker's  option,  provided 
the  buyer  do  not  direct  that  four  be  manufactured/ 

Seduction.'  —  The  action  does  not  lie  unless  the  relation  of 
master  and  servant  exists,*  except  where  the  seducer  fraudulentLy 
obtains  the  services  of  the  female  with  intent  to  seduce  her,*  and 
unless  there  be  some  loss  of  service  or  injury,  however  slight;" 
and  it  must  be  the  immediate  result  of  the  seduction,  and  not  of 
the  detection  thereof."  Mere  seduction,  without  pregnancy,  ill 
health  or  injury,  is  not  sufficient  ;"*  but  communicating  a  venereal 
disease,  by  which  the  servant  was  made  sick,  is ;"  and  an  action  for 
enticing  a  daughter  from  service,  and  having  connection  with  her,- 
will  lie,  although  no  sickness  or  pregnancy  follow.'*  The  slightest 
service  is  sufficient,"  and  the  relation  may  exist  where  there  is  a 
right  to  command  the  services  of  the  female,  for,  in  such  case,  the 
relation  constructively  exists.'^    The  party  seduced  cannot  maintain 

'  MiiUevy  v.  Lord,  29  Barb.  454.  « Ingerson  v.    Miller,  47   Barb.   47 ; 

*  HutcMngs  v.  Munger,  41  Barb.  396.  Dain  v.  Wyckoff,  7  N.  Y.   191 ;   White 

3  Reed  v.    Randall,  29   N.  Y.   358 ;  v.  Nellis,  31  id.  105. 

Fitch  V.  Carpenter,  43  Barb.  40  ;  Dela-  »  Dain  v.  Wyekof,  18  N.  Y.  45. 

field  V.  De  Grau,  3  Keyes,  467,  471,  9  '» Ingerson  v!  Miller,  47  Barb.  47. 

Bosw.  1 ;    Weaver  v.  Wisner,  51   Barb.  "  Knight  v.  Wilcox,  14  N.  Y.  413. 

638;  Leavenworth    v.   Packer,    52   id.  "^^  Ingerson  v.   Miller,  47  Barb.  47; 

133  ;  Couston  v.  Chapman,  3  Eng.  Rep.,  Knight  v.  Wilcox,  14  N.  Y.  413. 

and  see  Moak's  note  at  end  of  the  case.  '^  White  v.  Nellis,  31  N.  Y.  405,  31 

■*  Rust  V.  Eckler,  41  N.  Y.  488  ;  Vin-  Barb.  279. 

cent  V.  Leland,  100  Mass.  432  ;   Willard  '■*  Eoans  v.  Walton,  L.  R.,  2  C.  P.  615. 

V.   3ferritt,  45   Barb.  297;    Woodle  v.  ^^  Lipe  v.  Eisenlord,  32 '!:i.Y.  229,  729  ; 

Whitney,  23  Wis.  56  ;  but  see   Holden  Bagley  v.  Decker,  44  Barb.  577. 

V.  Clancy,  41  How.  1.  "  Mulmhall  v.   Millward,   11   N.    Y. 

5  Willardv.Merritt,A5Ba.xh.  295-1.  343;    Clark  v.   Fitch,  2  Wend.   459; 

«  Sharpe  v.  Johnson,  41  How.  400.  Gray  v.  Durland,  50  Barb.  100  ;  Jerry 

■"  Upon  the   subject,  generally,  see  v.  Hutchinson,  L.  R.,  3  Queen's  Bench, 

Hilliard  on  Torts,  Addison  on  Torts,  599 ;    Mann    v.   Barrett,   6    Esp.    32 ; 

Sedgwick  on  Damages,  Broom's  Com.  Bartly   v.   Richtmyer,  4  N.  Y.   38,  3 

Law  (4th  Eng.  ed.),  78,  848,   Smith's  Barb.  182. 
Man.  of  Com.  Law  (1st  Am.  ed.),  151, 
415,  and  Moak's  note,  2  Eng.  Rep.  683. 

54 


rue  acLiou,  uui  ii  um  seuucer  pxuiiiiseu  lu  lUciiry  lue  beuuceu,  imni 
fact,  if  alleged,  may  be  shown  in  aggravation  of  damages.*  The 
relation  of  master  and  servant  must  exist  at  the  time  of  the  seduc- 
tion, and  not  of  tlie  lying-in.  A  mother  cannot  maintain  an  action 
for  seducing  her  daughter  during  the  life-time  of  the  husband  and 
father,  although  he  die  before  the  confinement  of  the  daughter  ;* 
otherwise  if  the  husband  be  dead  when  the  daughter  is  seduced, 
or  the  husband  be  separated  from  the  wife,  and  the  daughter 
reside  with  her.*  The  right  of  action  dies  with  the  master,  nor 
does  it  pass  to  an  assignee.^  A  stepfather  with  whom  a  daughter 
is  residing,  and  to  whom  he  stands  in  loco  jparentis  at  the  time  of 
her  seduction,  may  maintain  the  action ;'  otherwise  if  she  reside 
elsewhere  at  time  of  the  seduction.''  A  contract  for  future  illicit 
connection  is  illegal,  and  it  seems  a  past  co-habitation,  although 
not  an  illegal  is  not  a  sufficient  consideration,*  unless  the  instru- 
ment be  under  seal."  A  promise  by  the  father  of  an  illegitimate 
child,  to  the  mother,  that  if  she  will  abstain  from  affiliating  a  child 
he  will  pay  for  its  maintenance,  or  to  pay  her  for  its  maintenance 
if  she  will  maintain  it  and  keep  their  connection  a  secret,  is  valid," 
but  an  agreement  by  a  father  to  the  mother,  to  pay  her  a  certain 
sum  for  supporting  their  illegitimate  child,  is  avoided  if  the 
mother  procure  an  order  of  filiation." 

Set-off. '" —  An  action  to  compel  the  set-ofiT  of  mutual  demands  is, 
in  many  cases,  a  necessity  in  order  to  enable  the  practitioner  to  pro- 
tect the  interests  of  his  clients.  Thus,  on  a  ^notion  to  set  ofi'  one 
judgment  against  another,  the  court  will,  in  the  exercise  of  its 


'  Hamilton  v.  Lomax,  26  Barb.  615 ; 
Paul  V.  Frazier,  3  Mass.  71. 

2  Hotelikim  v.  Hodge,  38  Barb.  117; 
Wells  V.  Padgett,  8  Barb.  325;  Kniffen 
V.  McGo7inell,  30  N.  Y.  285 ;  see  1  Bish. 
Mar.  &  Div.,  §^  263,  265. 

*  Oeorge  v.  Van  Home,  9  Barb.  523  ; 
Cla/rke  v.  Fitch,  2  Wend.  459. 

*  Bagly  v.  Dicky,  44  Barb.  577 ;  Gray 
V,  Durland,  50  id.  100. 

*  Howard  v.  Crowther,  8  Mees.  & 
Welsb.  601. 

«  Bracy  v.  KibUe,  31  Barb.  273. 

">  Partly  v.  Richtmyer,  4  N.  Y.  39, 
Smith  on  Cont.  178,  note,  marg  p. 

8  Smith's  Man.  Com.  Law,  1st  Am. 
ed.,  57-70. 

'  Smith  on  Cont.  178,  marg.  p.,  note 
to  5th  Am.  ed. 


'0  Broom  on  Com.  Law  (4th  Eng.  ed.) 
333  note  q ;  Linnegar  v.  Hood,  5  C. 
B.  (57  Eng.  C.  L.)  437;  Jennings  v. 
Brown,  9  Mees.  &  Welsb.  496 ;  Smith 
V.  Roche,  6  C.  B.  N.  S.  (95  Eng.  C  L., 
223.  The  case  of  Crowhurst  v.  Laverach, 
8  Exch.  208,  so  far  as  it  seems  to  hold 
such  an  agreement  to  be  without  con- 
sideration, is  not  good  law. 

"  Crowhurst  v.  Laverach,di  Exch.  208. 

''^  Upon  the  subject,  generally,  see 
Waterman  on  Set-otf,  JBarb.  on  Set-off, 
1  Story's  Eq.,  i^g  663-4,  2  id.,  i^g  1430- 
1444  ;  Smith's  Man.  of  Eq.,  1st  Eng. 
e4. ,359-360  ;  Adams's  Eq.  222,  marg. p.; 
note  to  Whyte  v.  O'Brien,!  Sim.&  Stu, 
551,  Banks's  ed, ;  Moak's  note  to  2  Eng. 
Rep.  628. 


discretion,  protect  the  lien  or  riglit  of  an  attorney,'  but  in  an 
action  the  set-off  will  be  ordered  without  regard  thereto.' 

The  cases  before  the  Code,  holding  that  the  costs  of  one  suit 
would  not  be  set  off  against  the  recovery  in  another,'  were  founded 
upon  the  old  doctrine,  changed  by  the  Code,*  that  the  costs 
belonged  to  the  attorney  and  not  the  party.  So,  in  some  cases,  a 
set-off  will  be  decreed,  although  both  demands  are  not  due.  If 
the  report  of  a  referee  or  verdict  of  a  jury  be  assigned  before 
judgment,  or  if  the  client  agree  that  the  recovery  shall  belong  to 
the  attorney,  the  right  to  set  off  never  attaches.*  Insolvency 
alone  is,  in  many  cases,  a  sufficient  ground  for  set-off." 

Sheriif/  —  Where  a  sheriff  is  sued  for  a  tort  he  need  net  be 
described  or  averred  to  be  such;'  and  where  he  sues  or  is  sued, 
a  simple  averment  that  he  is  such,  without  showing  when  and  how 
he  was  elected  and  qualified,  is  sufficient.'  He  is  liable  for  negli- 
gence in  not  seiwing  or  executing  process,  although  the  plaintiff's 
attorney  do  not  notify  him  the  defendant  resides  in  the  county, 
or  of  his  place  of  residence,  and  if  he  had  done  so  the  loss  might 
have  been  prevented."  He  and  his  deputy  are  jointly  liable  for 
a  tort  committed  by  his  deputy,  by  color  of  pffice."  And  when 
sued  for  the  tort  of  his  deputy  he  need  not  be  sued  as  such.  His 
liability  rests  upon  the  relation  of  principal  and  agent."  His  sureties 
are  also  liable  in  such  case  —  as  where,  assuming  to  act  by  virtue 
of  an  execution,  he  levies  upon  the  property  of  a  stranger."  He 
is  liable  for  the  surplus  moneys  on  a  partition  or  foreclosure,  sale, 

'  Martin  v.  Eanouse,  17  How.  146,  9  v.  Young,  2  Rob.  672 ;  Rooneyv.  Second 

Abb.  370  n;  Defiganerie  v.  Young,  2  Av.  R.  R.,18  N.  Y.  368;  Fitch  v.  Gar- 

Rob.  671 ;  Purchase  v.  Bellows,  16  Abb.  diniere,  2  Keyes,  516 ;  Ely  v.  Cook,  2 

105 ;  Moak's  Notes  to  Clarke's  Ch.  428,  Hilt.  406. 
marg.p.  "  Smith  v.  Felton,  43  N.  T.  419. 

^  Nicoll    V.   Nicoll,  16   Wend.    445 ;        ''  Upon   the   subject,  generally,   see 

Martin   v.   Kanouse,  17  How.    146,  9  Crocker  on  Sheriffs,  Hilliard  on  Torts, 

Abb.  370  n  ;  Defiganerie  v.  Young,  2  title  Officers ;  Addison  on  Torts,  title 

Rob.  671 ;   Moak's  Notes  to   Clarke's  Officers. 

Ch.  428,  viarg.  p. ;  Carter  v.  Roberts,  ^  Stillman  v.  Squire,  1  Denio,  327. 
24  How.  44,  was  not  reversed  on  this  ^  Kelley  v.  Breusing,  32  Barb.  601. 
point.  '"  Tomlinson  v.   Rowe,  Lalor's   Sup. 

-  Ainslie  v.  Boynton,  2  Barb.  258 ;  410. 
but  see  People  v.  N.  Y.,  etc.,  13  Wend.       "  Wateriury  v.  Westervelt,  9  N.  T, 

649.  598  ;  King  v.  Orser,  4  Duer,  431 ;  Po7id 

^  Code,  §  803  ;  Martin  v.  Kanouse,  2  v.  Leman,  45  Barb.  152. 
Abb.  327,  3d0.  '*  Curtis  v.  Fay,  37  Barb.  64. 

^  Roberts  Y.  Carter,  \lllo\Y.  3^1,  &nA       ^^  People  v.  Schuyler,  4   N.  Y.  173; 

38  N.   Y.  107,  reversing  24  How.  44.  Pond  v.  Leman,  45  Barb.  152 ;  Cum. 

See  Moak's  Notes  to  Clarke's  Ch.  428,  mings  v.  Brown,  43  N.  Y.  514. 
marg.  p.,  and  cases  cited ;  Defiganerie 


althongli  he  paid  them  over  to  the  plamtin  's  attorney.  Where 
the  sheriff  arrests  the  wrong  party,  who,  to  procure  his  discharge, 
deposits  the  money,  he  may  recover  it  back,  although  the  sheriif 
has  paid  it  over  to  the  plaintiff  in  the  execution." 

Slander/  —  In  an  action  for  slander  or  libel,  if  it  be  claimed 
that  the  words  used  have,  by  local  usage,  acquired  a  distinct  and 
peculiar  meaning,  such  usage  must  be  averred  and  proved  when 
it  is  a  question  of  fact  for  the  jui*y  whether  they  were  so  used  and 
understood.*  Thus,  the  ordinary  meaning  of  the  word  "  black- 
mail "  may  be  averred  and  proved  to  have  acquired  a  local  mean- 
ing.** Words  spoken  of  a  man  in  his  office  must,  in  order  to  be 
actionable,  be  spoken  of  him  in  reference  to  his  character  or  con- 
duct in  such  office,  and  impute  to  him  the  want  of  some  qualification 
for,  or  misconduct  in,  his  office ;'  but  words  imputing  such  for 
any  occupation  are  actionable.^  Words  imputing  to  a  mariner 
drunkenness,  while  in  command  of  a  vessel,  are  actionable  per  se* 
So  words  imputing  to  a  mechanic  want  of  skill  or  knowledge  in 
his  craft.'  Words  imputing  to  a  man  misconduct  in  his  trade  or 
office  are  actionable,  but  if  it  be  not  such  an  one  as  the  court  can 
take  judicial  notice  of,  the  office  or  trade,  its  duties  and  the  man 
ner  of  discharging  them,  must  be  averred."  Though  a  libel  may 
apply  only  to  some  of  a  class,  it  may  be  alleged  by  innuendo  to 
apply  to  the  plaintiff*,  as  that  cruelties  are  practiced  in  some  of 
the  factories."  And  if  it  be  without  explanation,  as  "  your  boys 
stole  my  corn,"  any  one  and  each  of  the  sons  may  mamiam  an 
action,  because  all  are  injured  by  the  assertion.'"  In  an  action  for 
slander  of  title  the  words  must  be  not  only  false,  but  must  be  spoken 


'  Van  Tassel  v.  Van  Tassel,  31  Barb. 
439. 

*  MemU  V.  Dalcin,  L.  R.,  3  Q.  B.  18. 

^  Upon  tlie  subject,  generally,  see 
ante,  title  Damages ;  Townsend  on 
Slander  and  Libel,  Starkie  on  Slander 
(Folkard's  ed.),  Ililliard  on  Torts,  Ad- 
dison on  Torts,  Broom's  Com.  Law  (4th 
Eng.  ed.),  654,  im,  761,  Smith's  Man. 
of  Com.  Law,  3  Broom's  Com.  131, 135, 
4  Conw.  Hob.  Pr.  681,  712. 

*  Edsall  V.  Brooks,  3  Rob.  284 ;  Slater 
V.  Franks,  Hob.  126  ;  Pilmor  v.  Branch 
Bank,  4  Am.  L.  Reg.  N.  S.  336,  Sup. 
Court  of  Iowa,  but  see  Wriglit  v. 
Paige,  36  Barb.  438,  4  Keyes,  581 ;  Deas 
V.  Short,  16  How.  322  ;  Weed  v.  Bihhins, 
32  Barb.  315 ;  Collyer  v.  Collins,  17  Abb. 


468  ;  Townsend's  Libel  and  Slander,  § 
382,  id.,  §  133,  note,  140,  §  134,  note, 
142. 

5  Edsall  V.  Brooks,  3  Rob.  284. 

^  Lumby  v.  Allday,  1  Crom.  &  Jer. 
301,  and  cases  cited  in  note  at  end  of 
case,  Johnson's  ed. 

'  Fowler  v.  Bowen,  30  N.  T.  20. 

^  Irvin  V.  Brandwood,  1  Hurl.  & 
Colt.  960. 

»  Fitzgerald  v.  Redfield,  36  How.  97. 

^0  Foulger  v.  Newcomh,  L.  R.,  2  Exch. 
327. 

"  Lefanu  v.  Malcomson,  1  House  of 
Lords  Cas.  637. 

•i*  Mahee  v.  Fisk,  42  Barb.  326 ;  Fox- 
craft  V.  Lasey,  Hob.  89  a. 


maliciously.'  If  it  be  necessary  to  allege  special  damages,  the 
complaint  must  show  how  the  special  damages  resulted  from  the 
speaking  of  the  words ;''  and  if  loss  of  customers  be  claimed,  the 
particular  customers  must  be  named.'  In  New  York  an  action 
may  be  maintained  by  a  female,  whether  married  or  single,  to 
recover  damages  for  words  spoken  imputing  unchastity  to  her, 
and  it  is  not  necessary  to  allege  or  prove  special  damages  in  order  to 
maintain  the  action.*  Words  to  be  actionable  j?er.*?e  must  impute 
a  crime  involving  moral  turpitude,  punishable  by  indictment;^  it  is 
not  actionable  to'  charge  one  with  a  military  crime,  as  desertion.' 
Charging  a  woman  with  keeping  a  "  whore  house,"  imputes  the 
keeping  of  a  bawdy  house,  which  is  indictable  and  actionable  per 
se.''  It  is  actionable  to  say  another  has  the  clap  or  the  pox  ;*  but  to 
say  a  man  has  it  and  gave  it  to  a  woman  he  had  married  is  not 
actionable,  if  it  be  proved  he  in  fact  had  it  immediately  after  his 
marriage,  his  wife,  without  knowing  she  had  the  disease,  having 
communicated  it  to  him.' 

Specific  performance.'" — Equity  will  not  enforce  specific  per- 
formance of  a  contract  to  convey  real  estate,  if  it  appear  from  the 
terms  of  the  contract  the  parties  intended  the  money  should  be 
I)aid  on  a  particular  day,  unless  it  be  then  paid."  The  party  in 
default  cannot,  in  equity,  insist  time  was  of  the  essence  oi  the 
contract.'"  The  contract  sought  to  be  enforced'  must  be  definite 
and  specific  in  its  terms,  for  the  court  cannot  make  a  contract  for 
the  parties,"  although  it  may  be  rendered  sufficiently  definite  and 
certain  by  proof  of  surrounding  circumstances,  and  the  subsequent 
conduct  of  the  parties,  and  will  then  be  enforced.'* 

1  Steward  v.  Young,  L.  R.,  5  C.  P.  122.  et  seq. ;  Smith's  Man.  of  Eq.,  223,  et  seq. ; 

*  Cook  V.  Cook,  100  Mass.  194.  Adams's  Eq.,  Seton's  Decrees,  Dauiell's 

*  Knickerbocker  Life  Lis.  v.  Ecclesine,  Ch.  Pr.  (4th  Am.  ed.),  Kerr  on  Inj.,  Wat. 
11  Abb.  N.  S.  385;  see  ante,  title  Eden  on  Inj.,  49,  et  seq. ;  Moak's  notes 
Damages.  to  Clarke's 'Ch.,  marg.  p.  136. 

4  Laws  NY.  1871.  ch.  219,  vol.1,  p.  448.       "Moak's  note    to  Clarke's  Ch.  136, 

*  Wright  v.  P^t^re,  3  Keyes, 581.  marg.  p.;  Dunlap's  note  to  Davits  v. 
« 19  Ohio  St.  N.  S.  430 ;  Trask  v.  Payne,     T/iomas,  1  Russ.  &  Mylne,  514,  Banks's 

43  Barb.  569,  disapproving  4  Bl.  Com.  ed. ;  Dunlap's  note  to  Doloret  v.  Ruths- 

102 ;  2  McCaulay's  Hist.  ch.  8,  p.  212.  cldld,  1  Sim.  &  Stu.  599,  Banks's  ed. 
•>  WrigJit  V.  Paige,  3  Keyes,  581.  ''^  McCool  v.  Jacobus,  7  Rob.  115  ;  Kar 

*  Williams  v.   Holdredge,  22    Barb,  ker  v.   Waverly,  50  Barb.  79. 

396  ;  Hetcitt  v.  Mason,  24  How.  366.  '^  Buckmaster  v.  Thomson,  36  N.  Y. 

«  Goldermanv.  Stearns,  7  Gray,  181.  558  ;  Tyler  v.  iVew  Amsterdam,  etc.,  4 

'"  Upon  the   subject,  generally,  see  Rob.  151 ;    Wehl  v.    Vandertmdbeke,  2 

Fry  on  Specific  Performance,  1  Story's  Lans.  267. 

Eq.  Jur.,  ii§  712,  793;  Story's  Eq.  PL,  i"  Oxford  v.  Provand,  L.  R.,  2  Priv 

§§  75,  IGO,  172-7;  Willard's  Eq.,  260,  Council  App.  135. 


A  parol  agreement  between  father  and  son,  that  ii  the  son  will 
enter  upon  a  tract  of  land  and  improve  it  the  father  will  convey 
the  same  to  him,  is  founded  on  a  good  consideration,  and  if  the 
son  enters  upon  the  land  and  occupies  and  improves  it  a  specific 
performance  of  the  agreement  will  be  decreed.'  Specific  perform- 
ance of  an  agreement  to  transfer  stock  may  be  decreed  where  the 
contract  to  transfer  is  clear  and  the  uncertain  value  of  the  stock 
renders  it  difiicult  to  do  justice  by  an  award  of  damages.'  A 
decree  for  a  specific  performance  by  a  vendor  should  not  direct  the 
defendant  to  procure  releases  from  parties  over  whom  he  has  no 
control.'  The  judgment  in  such  a  case  should  direct  a  reference 
to  ascertain  whetlier  the  defendant  can  give  a  good  title  ;  also  the 
amount  of  any  incumbrance,  which  is  a  lien  on  the  premises,  and 
can  be  discharged  by  the  payment  of  money ;  and  the  deduction 
which  should  be  made  from  the  purchase-money  as  compensation 
for  the  outstanding  terms  of  tenants.  It  should  also  require  the 
payment  to  the  referee,  by  the  plaintiff,  of  so  much  of  the  pur- 
chase-money as  may  be  necessary  to  pay  off  all  incumbrances 
which  can  be  discharged,  and  to  the  defendant,  or  into  court,  for 
his  benefit,  of  the  residue  thereof,  after  deducting  the  amount  to 
be  allowed  for  such  compensation.  It  should  also  provide  for  the 
discharge,  by  the  referee,  of  the  incumbrances  which  can  be  so 
paid  off',  and  the  execution,  within  a  reasonable  time,  by  the  de- 
fendant to  the  plaintiff,  of  a  good  and  sufiicient  conveyance  of  the 
premises,  etc.,  to  be  delivered  upon  the  payment  of  the  sums 
before  mentioned." 

"Where  the  landlord  agreed  to  renew  a  lease  at  a  rent  to  be 
fixed  by  arbitrators,  but  refused  to  arbitrate  and  revoked  the 
powers  of  tlie  arbitrators,  held  a  specific  performance  would  be 
decreed  at  what  the  court  on  the  trial  should  determine  to  be  a 
reasonable  rent,  and  that  the  landlord  would  be  restrained  by 
injunction  from  dispossessing  the  tenant.*     A  purchaser  will  not 


'  Lohdell  V.  Lohdell,  36  N.  T.  327,  4 
Abb.  N.  S.  56 ;  Freeman  v.  Freemnn, 
51  Barb.  306,  8  Am.  Law  Res?.  N.  S.  29, 
43  N.  Y.  34  ;  Neale  v.  Nenle,  9  Wallace, 
1 ;  Townend  v.  Taker,  L.  R.,  1  Ch.  App. 
446. 

*  Wliite  V.  Schuyler,  1  Abb.  N.  S.  300, 
81  How.  38. 

*  Jerome  v.  Beudder,  2  Rob.  169. 

*  Qra/tam    v.  James,  7    Rob.    468 ; 


Brmnell  v.  Kettletas,  16  Abb.  205,  4 
Bosw.  491 ;  Kelso  v.  Kelly,  1  Daly,  420, 
423;  Reformed.,  etc.,  v.  Parkhurst,  4 
Bosw.  491,  16  Abb.  205  ;  Viany  v.  Fer- 
?•«»,,  5  Abb.  N.  S.  110,  54  Barb.  529 ;  N.  Y. 
Cent.  R.  R.  v.  Saratoga,  etc.,  39  Barb. 
289 ;  see  Ryder  v.  Jenny,  2  Rob.  56 ; 
W''lh  V.  T)e  Leyer,  1  Daly,  45,  and  3  Am. 
Law  Rev.  249,  for  an  article  upon  arbi- 
tration clauses. 


be  compelled  in  equity  to  take  a  doubtful  title.'  Where  one 
contracts  for  the  interest  of  another  at  a  certain  price,  if  he  know 
the  facts  as  to  his  title,  he  must  pay  it  and  cannot  defend  an 
action  for  a  specific  performance  by  showing  that  the  vendee  in 
fact  had  no  title."  If  the  vendee  have  expended  money  in  good 
faith,  in  compliance  with  the  contract,  relying  upon  performance  by 
the  vendor,  the  vendor  who  is  unable  to  perform  cannot  recover 
possession  of  the  lands  without  repaying  such  expenditures.  If  the 
vendee  elect  to  rescind  the  contract,  the  amount  of  his  expendi- 
tures will  be  decreed  to  be  a  lien  upon  the  premises,  or  their  pay- 
ment be  made  a  condition  of  the  surrender  thereof.'  The  court 
of  equity  will  not  ordinarily  enforce  a  building  contract,  nor  a 
contract  to  build  a  railway.  The  cases  where  it  will  are :  1. 
Where  the  building  was  to  be  done  upon  the  land  of  the  person 
who  agreed  to  do  it.  2.  Where  the  consideration  for  the  agree- 
ment was  the  sale  or  conveyance  of  the  land  on  which  the  build- 
ing was  to  be  erected  and  the  plaintiif  had  already,  by  such  con- 
veyance, executed  the  contract.  3.  Where  the  building  was  in  some 
way  essential  to  the  use,  or  contributory  to  the  value,  of  adjoining 
land  belonging  to  the  plaintiff.  4.  When  the  court  could  dispose 
of  the  matter  by  an  order  capable  of  being  enforced  at  once ;  it 
will  not  decree  a  party  to  perform  a  continuous  duty  extending 
over  a  number  of  years.*  The  granting  of  a  specific  performance 
is  a  matter  of  discretion,  and  will  not  be  awarded  in  cases  of 
fraud  or  mistake ;  or  of  a  hard  and  unreasonable  bargain ;  and 
where  the  decree  would  produce  injustice.^ 

Where  the  owner  demised  to  A  the  minerals  on  the  west  side 
of  a  fault,  supposed  to  be  about  eighty-three  acres,  and  to  B  those 
east  of  it,  supposed  to  be  about  ninety-eight  acres,  but  in  running 
the  fault  it  was  found  to  leave  only  about  eight  acres  on  the  west, 
thus  giving  B  a  large  excess ;  held,  the  excess  was  so  great  that 
equity  would  not  have  decreed  a  specific  performance  in  favor  of 

'  O'ReMy  v.  King,  2  Rob.  587 ;  Beper  Woolw.  C.  C.  Rep.  26  ;  Lucas  v.  Com- 

V.  Marks,  2  Sweeny,  715.  merford,  3   Brown's  Ch'y,  166,  see   1 

"  Rume  y.PocockX-  R-,  1  Oh.  App.  379.  Story's  Eq.  Jur.,  §  727. 

•■  Moak's  note  to  Clarke's  Ch'y,  o50,  ^  Maithnon  v.    TennUiger,  3    Barb. 

marq.  p.  and  cases  cited  ;  Manns  x.  Isle  50 ;  Lynch  v.  BisrJwf,  15  Abb.  357,  note  ; 

of  Wight  R.  R  ,  L.  R.,  5  Ch'j  App.  414  ;  Wdliston  v.  Welliston,  41  Barb.  635  ; 

Gihert  v.  Peteler,  33  Barb." 488,  38  N.  Oalc.  v.  Archer,  43  Barb.  320;  Shreios- 

Y.  165.  hurii,  etc.,  v.   North   Western,  etc.,  6 

*  Ross  V.  The  Union  Pacific,  etc.,  1  House  of  Lords  Casefl,  113. 


±fy  and  hence  ne  coiiia  not  restrain  a.  irom  worKing  on  tne  east 
of  the  fault,  and  that  he  had  not  such  a  constructive  possession  as 
to  entitle  him  to  maintain  the  action.-  A  railroad  company  will 
be  deemed  to  comply  with  their  agreement  as  to  the  manner  of 
nmnino:  across  the  farm  of  one  over  whose  lands  the  road  is  to  be 
constructed ; '  so  will  the  churchwardens  of  a  church  from  ringing 
a  bell.' 

Under  a  power  to  lease  at  the  iest  rent,  the  very  highest  rent 
that  can  be  obtained  is  not  required,  and  the  true  criterion  is 
whether  the  rent  has  been  fairly  obtained  without  any  private 
advantage  to  the  donee  of  tlie  power,  and  therefore  an  agreement 
which  the  court  treated  as  subject  to  the  same  rule  was  enforced, 
though  the  rent  obtained  was  below  the  offers  made  by  less  solvent 
tenants,  and  below  the  average  at  which  the  lands  were  valued, 
where  the  agreement  was  fairly  made  and  was  a  prudent  one. 

Though  a  contract  to  lease  by  a  tenant  for  life  with  a  leasing 
power  cannot  be  enforced  as  an  execution  of  the  power,  it  may  be 
partially  enforced  by  decreeing  a  lease  for  the  life  of  the  tenant 
for  life  if  the  contract  was  bona  fide,  and  more  especially  if  there 
has  been  an  outlay  on  the  faith  of  it.* 

Part  performance  of  a  verbal  contract  tates  it  out  of  the  statute 
of  frauds  and  entitles  the  party  to  a  specific  performance  ;*  but 
payment  of  the  purchase-money  or  a  part  thereof  is  not  ordi- 
narily a  part  performance  within  this  rule.*  Where,  however,  the 
restoration  of  the  money  will  not  restore  the  purchaser  to  his 
former  situation  he  is  entitled,  in  equity,  to  a  specific  perform- 
ance of  the  contract.^  In  the  part  performance,  however,  the  acts 
must  be  so  clear,  certain  and  definite  in  their  object  and  design, 
as  to  refer  exclusively  to  a  complete  and  perfect  agreement,  ot 
which  they  are  a  part  execution  And  they  must  be  a  part  per- 
formance of  the  agreement  set  up'  in  the  complaint  and  not  in 
the  answer  by  way  of  defense." 


'  Davis  V.  Shepherd,  L.  R.,  1  Ch.  App. 
410. 

«  Raphael  v.  Thames,  L.  R.,  2  Ch. 
App.  147. 

*  Mitrtiri  v.  Nutkin,  2  Peere  Wil- 
liams, 26G 

*  Dyns  V.  Crnisp,,  8  Irish  Eq.  Rep. 
407,  420,  2  Jones  and  Latoviche,  400; 
SUGDEN,  Lord  Chancellor,  commenting 


on  and  disapprovins:  of  dicta  in  Hnrt- 
nett  V.  Yieldinfj,  2  Schoales  &  Lef.  549. 

«  Malim  v.  Broron,  4  N.  Y.  403  ;  Wil- 
liHton  V.  Willi.ston,  41  Barb.  635. 

*  Corfqer  v.  Lanfdnr},  43  N.  Y.  550. 

'  ITnifjht  V.  Child,  34  Barb.  186. 

8  Afalins  v.  Broirn,  4  N.  Y.  403. 

^  Rathhnn  v.  Rathhun,  6  Barb.  98. 
Haight  v.  Child,  34  Barb.  186. 


If  the  vendee  take  possession  of  the  lands  and  is  in  possession 
thereof  under  and  pursuant  to  the  contract,  that  is  a  siifficient 
part  performance.'  Otherwise  if  he  have  smTendered  the  posses- 
sion Mdnch  has  been  accepted  by  the  vendor.' 

Therefore  where  a  tenant  in  possession  sued  for  the  specific 
performance  of  an  alleged  agreement  for  a  lease,  and  set  up  his 
possession  as  an  act  of  part  performance  of  the  agreement,  it  was 
held  not  to  be  such,  because  it  was  referable  to  his  character  of 
tenant.  So  again,  where  a  tenant  from  year  to  year  continues  in 
possession,  and  lays  out  such  moneys  on  the  farm  as  are  usual  in 
the  ordinary  course  of  husbandry,  this  is  no  j)art  performance  of 
an  agreement  for  a  lease.  And  again,  where  a  tenant  under  a 
term  alleged  the  rebuilding  of  a  party  wall,  which  was  in  a  ruin- 
ous state  during  his  term,  as  part  performance  of  an  agreement 
by  his  landlord  to  grant  a  renewed  term,  it  was  held  that  the  act 
was  equivocal^  as  it  might  have  been  done  by  him  in  respect  of 
his  title  under  the  old  as  well  as  under  the  alleged  new  term.' 

So  remaining  in  possession  by  the  purchaser,  if  he  was  in  pos- 
session at  the  time  of  his  purchase,  does  not  constitute  such  a 
part  performance  as  will  take  the  case  out  of  the  statute.* 

To  entitle  a  purchaser  to  a  specific  performance  on  the  ground 
of  alleged  improvements,  they  must  have  been  made  under  a 
possession  pursuant  to  the  terms  of  the  contract  of  sale  by  the 
consent  of  the  seller  and  with  knowledge  on  his  part  that  the 
purchaser  entered  or  intended  doing  so  under  the  contract  of  pur- 
chase. ISTor  is  a  possession  without  delivery,  or  without  the  intcu- 
tion  or  consent  of  the  owner,  sufhcient ;  still  less  if  the  possession 
has  been  obtained  by  fraud  or  indirection.  So  a  mere  continued 
possession  by  the  plaintiff,  he  having  been  in  possession  before 
the  contract,  is  not  enough  unless  there  be  declarations  or  circum- 
stances distinctly  showing  that  his  continuity  of  possession  is  in 
pursuance  and  execution  of  the  contract,  and  so  regarded  by  the 
parties.  This  may  be  made  apparent  by  paying  more  rent  or 
making  improvements,  or  expending  money  or  doing  other  things 
required  by  the  contract.* 

'  Tliaplmgen  v.  Thnphagen,AQ  Barb.     p.  353,  2  Am.  ed.  176,  marg.  p. ,2  Kurs. 
[VSl .  Bennett  v.  Abramn,  41  id.  Gld         190,  note. 
^  Haight  v.  Child,  34  Barb.  186.  *  Hatcher  v.  Ilatcher,  1  JIcMillan's 

3  Fry  on  Specific  Performance,  i^  387,    Cli.  311. 

*  3   Pars,   on   Cout.,    5tli    ed.,    393 

55 


The  possession,  when  set  up  as  an  act  of  part  performance,  nuist 
be  referable  to  the  agreement.  It  must  be  either  delivered  bj  or 
taken  with  the  consent  of  the  vendor.     If  otherwise  it  cannot 


avail 


Tlie  act  must  be  in  part  performance  of  that  particular  contract.* 

"VViiere  a  vendee  of  real  estate,  nnder  a  parol  contract,  relies 
upon  his  entry  into  possession  to  take  it  out  of  the  statute  of 
frauds,  his  entry  must  be  connected  Avith  and  referable  to  the 
contract,  and  it  must  clearly  appear  that  he  took  the  possession 
with  the  known  permission  of  the  vendor.^ 

Specific  performance  will  be  decreed  of  an  agreement  to  main- 
tain division  fences,*  of  one  to  pay  off  and  discharge  a  mortgage 
on  one's  lands,  although  he  have  conveyed  them  ;  ^  so  of  an  agree- 
ment to  j)ay  a  deficiency  f  and  to  buy  a  debt.' 

The  complaint  in  an  action  for  specific  performance  should 
allege  a  readiness  and  willingness  on  the  part  of  the  plaintiff  to 
perform  the  agreement  set  up  and  an  offer  to  do  so ;'  the  better 
practice  is  to  bring  the  money  into  court  for  the  defendant, 
although  this  is  not  absolutely  necessary.*  Where  the  heir  of 
the  grantor  is  a  lunatic  the  court  will  decree  a  conveyance  by 
his  committee.'"  After  the  death  of  the  vendor  the  iDurchase- 
money  is  payable  to  his  personal  representatives,'*  so  that  they 
as  well  as  the  heirs  are  necessary  parties,'^  unless  the  heirs  con- 
vey to  the  personal  representatives  in  order  to  enable  them  to 
perform." 

If  the  wife  of  the  party  will  not  join  in  the  conveyance  specific 
performance  by  the  husband  will  be  decreed  with  compensation 
in  damages  for  the  refusal  of  the  wife,'*  although  she  cannot  be 


Frame  v.  Dawson,  14  Vesey,  387 ;  Wil- 
liston  V.  WillMon,  41  Barb.  643  ;  Ratli- 
bun  V.  Ratlibim,  (5  id.  9. 

'  Jertis  V.  Smith,  Hoffman's  Cli.  Rep. 
470. 

*  Phillips  V.  Thomson,  1  Johns.  Ch. 
131. 

*  Lord  V.  Underdunck,  1  Sandf.  Ch. 
46 ;  Byrne  v.  Romaine,  2  Edw.  Ch. 
Ken.  445. 

*  Williston  V.  WilHston,  41  Barb.  635. 
'  lu'iinett  V.  Ahravhi,  41    Barb.  610; 

Fariihnm  v.  Mallory,  5  Abb.  X.  S.  380, 
8  Keyes,o27  ;  S-tvacje  v.  Tat/lor,  Talb.  R. 
234;  Kanawha  v.  Kanaiolia,  etc.,  7 
Blatchf.  420-1. 


*  Goldsmith  v.  Brown,  35  Barb.  484. 
'  Wright  v.  Bell,  5  Price,  335. 
^  Haight    v.    Child,    34    Barb.    188; 
Irviii  V.  Gregory,  13  Gray,  217. 
'  Irvin  V.  Gregory,  13  Gray,  215. 
^^  iSirarticout  v.  Bnrr,  1  Barb.  495. 
"  SwartiDout  v.  Burr,  1    Barb.  495  ; 
Moore  v.  Burrows,  34  id.  173;  Adams 
V.  Green,  id.  176 ;   Smith  v.  Gage,  41 
id  60. 
'^  Sutherland  v.  Rose,  47  Barb.  145. 
'3  Schroeppel  v.  Hopper,  40  Barb.  435. 
'•*  Park  V.  Johnson,  4  Allen,  259,  cited 
2    Am.    L.   Recr.  N.  A  180;    Dutis  v. 
Parker,  14  Allen,  94  ;  see  llamra-'y  v 
Warren,  3  C.  E.  Greeu,  124. 


Cir.    IV  A.J       COMPLAINT   IN    PAETICULAR   CASES.  435 

compelled  to  release  her  dower.'  Where  a  husband  and  wife  ao-reed 
to  sell  the  wife's  estate  in  fee-simple,  the  purchaser  being  aware 
that  tlie  estate  belonged  to  the  wife,  and  she  afterward  refused  to 
convey,  it  was  held  that  the  purchaser  could  not  comj^el  the  hus- 
band to  convey  his  interest  and  accept  an  abated  price  ;^  nor  will 
the  court  decree  specific  performance  of  an  agreement  to  procure 
for  the  plaintiff  a  good  title  to  land  owned  by  another  to  the 
plaintiff's  knowledge.'  So  in  any  case  where  the  vendor  cannot 
fully  perform,  the  court  may,  at  the  election  of  the  vendee,  decree 
a  specific  performance  with  coaipensation  in  damages  or  a  proper 
reduction  on  account  of  the  deficiency.''  If  one  purchase  lands 
with  notice  of  an  agreement  on  the  part  of  his  grantor  to  convey 
them,  he  will  be  compelled  to  fulfill  such  agreement.^ 

Specific  performance  of  an  agreement  to  purchase  may  be 
decreed  provided  the  plaintiff  acquire  title  after  the  commence- 
ment of  the  suit  but  before  judgment,  but  the  plaintiff  in  such 
case  Vv'ill  be  charged  with  costs.*  Where  the  vendee  enters  into 
and  retains  possession  under  his  contract  he  cannot,  without  an 
oft'er  to  surrender  the  possession,  resist  a  decree  for  specific  per- 
formance on  the  ground  of  slight  defects  in  the  vendor's  title.' 
All  agreement  to  convey  by  certain  boundaries  pointed  out  by  the 
vendor,  but  a  conveyance  made  not  covering  the  entire  premises, 
will  be  reformed,  and  a  specific  performance  decreed  of  a  conveyance 
according  t(j  the  actual  agreement,  even  in  favor  of  an  assignee.* 

Stiunps." —  An  averment  that  a  party  made  and  executed  an 
instrument  imports  that  it  was  stamped,  and  it  is  not  necessary  to 
aver  that  it  was.'"  A  demurrer  will  not  lie  to  a  complaint  which 
does  not  show  the  instrument  was  stamped." 

Statute."' — "  There  is  a  material  distinction,  not  always  observed 

'  Squire  v.  Harder,  1  Paige,  494.  '  Tompkins  v.  Hyatt,  28  N.  Y.  347. 

*  Castle   V.  Wilkinson,  L.   R.,  5   Cli.        «  Bentley  v.    RmHh,  2   Keyes,   342 ; 
App.  534.  Moak's  note  to  Clarke's  Cli.  42,  marg.  p. 

^  Hill  V.  Flske,  38  Maine,  520.  «  Upon   tlie   subject,  generally,    see 

4  Gihert  v.  Peteler,  38  Barb.  483,  38  Bump's  Internal  Revenue  Law,  3  Pars. 

N.  Y.  laS ;  see  note  to  Balby  v.  PuMen,  on  Cont.,  1  Cliitty's  PI.  215,  1  Abb.  PI. 

8  Simons,  33,  Banks's  ed.,  and  also  to  and   Forms,  387,  note ;  Stepli.  PI.  347, 

In  rr,   Eare  Bank  Dra.inaq:',,  id.    449.  1  Estee's  PI.  and  Pr.  244,  et  seq. 

See  Beyer  v.  Marks,  2  Sweeny ,,715,  for  '«  Jones  v.  Danis,  22   Wis.  421  ;  Hal- 

tlie  rules  which  guide  a  court  of  equity  lock  v.  Jaudin,  34  Cal.  "CT. 

in  cases  of  compensation.  "  Hallock  v.  Ja.ndin,  34  Cal.  107. 

^Championv.BroiDn,Q5oh.x\».Ch.A'd?j.  '»  Upon  the  subject  of  pleadi)/<r  stat- 

*  Phi'lip^on  V.  Oihbons,h.  U.,  6  Ch.  utes    see   3   Con\v.    Rob.   Prac.  o23-0, 
App.  428.  612-610,  Gould's  PI.   ch.  3,  g  16, 


by  writers  on  pleading,  the  non-observance  of  wliicli  lias  some- 
times occasioned  confusion,  between  jjleading,  counting  uj)on  and 
reGiting  a  statute.  Pleading  a  statute  is  merely  stating  the  tacts 
which  bring  a  case  within  it  without  making  mention  or  taking 
any  notice  of  the  statute  itself.  Counting  upon  a  statute  consists 
in  making  express  reference  to  it,  as  by  the  words  '  against  the 
form  of  the  statute'  ('or  by  force  of  the  statute')  'in  such  case 
made  and  provided.'  Reciting  a  statute  is  quoting  or  stating  its 
contents.  A  statute  may,  therefore,  be  pd^'-^'^^d  without  either 
reciting  or  counting  upon  it ;  and  may  be  counted  upon  without 
being  recited."  *  By  section  163  of  the  Code,  "  In  pleading  a  private 
statute,  or  a  right  derived  therefrom,  it  shall  be  sufficient  to  refer 
to  such  a  statute  by  its  title  and  the  day  of  its  passage,  and  the 
court  shall  thereupon  take  judicial  notice  thereof."  This  section 
does  away  with  reciting  a  private  statute  ;  but  counting  upon  it 
still  remains  necessary,  although  the  form  of  counting  upon  it  is 
there  prescribed.*  This  section  of  the  Code  does  not  apply  to 
foreign  statutes.' 

To  plead  that  a  contract  is  valid  by  foreign  usury  laws  the  laws 
shou.ld  be  stated  and  the  facts  whicli  render  the  contract  void 
according  to  them  should  be  alleged  •*  so  as  to  municipal  laws 
and  ordinances.^  It  is  not  sufficient  to  plead  foreign  statutes  by 
their  titles  and  dates,  nor  by  a  statement  of  their -general  provis- 
ions and  requirements.'  In  the  federal  courts  the  general 
statutes  of  a  State  may  be  pleaded  in  the  same  manner  as  in  the 


'  Mould's  PI.,  ch.  3,  §  16,  note  p.  46, 
4th  ed. ;  iilso  cited  Steph.  PI.  347, 
Heard's  ed.,  and  1  Estee's  PI.  and  Prac. 
244.  Notwithstanding  the  weight  to 
be  given  to  such  standard  authors,  the 
editor  of  tlie  present  edition  does  not 
assent  to  the  above,  so  far  as  it  defines 
what  is  pleading  a  statute,  nor  does 
§  1G3  of  the  Code  seem  to  be  based 
upon  such  a  definition.  How  can  a 
'Statute,  as  such,l)e  pleaded  without  tbe 
slightest  reference  to  it  ?  We  think,  in 
order  to  plead  a  statute,  the  pleader 
should  state  that  by  statute  it  is  pro- 
vided, etc.,  although  it  may  not  be 
necessary  to  count  upon  or  recite  it  as 
the  terms  are  above  used.  1  Abb. 
Forms,  387. 

*  1  Gould's  PI.,  ch.  3,  ii  16,  note  vii, 
4th  ed.,  p.  47. 


3  Throop^  V.  Hatch,  3  Abb.  25 ;  Phin- 
ney  v  .  PMnney,  17  How.  197 ;  Thaeher 
V.  Morris,  11  N.  Y.  437  ;  Ruse  v.  Mut. 
Benefit  Ins.  Co.,  33  N.  Y.  516  ;  1  Estee's 
PI.  247  ;  as  to  form  of  pleading  a  foreign 
statute  see  1  Abb.  PI.  and  Forms,  3d6, 
ct  seq. 

*  Curtis  V.  Masten,  11  Paige,  15,  1 
Abb.  PI.  and  Forms,  387,  note ;  Fake 
V.  Smith,  7  Abb.  N.  S.  106 ;  Biinnatyne 
V.  BarringUm,  Drury's  Select  Cases, 
Temp.  Napier,  460. 

*  Barker  v.  Mayor,  17  Wend.  199  ; 
People  V.  Mayor,  7  How.  81. 

«  1  E.stee's  PI.  and  Prac.  248.  1  Abb 
PI.  and  Forms,  387,  note.  Throop  v. 
Hatch,  3  Abb.  Prac.  23 ;  Phinncy  x. 
Phinn.ey,\l  How.  197  ;  Carey  v.  Cincin 
nati,  etc.,  5  Clarke  (Iowa),  357. 


State  courts ;'  but  as  the  code  does  not  apply  to  tliein  private 
statutes  must  be  pleaded  as  at  common  law.'' 

Subscriptions.' — A  mere  voluntary  subscription  to  aid  a 
cliaritable  or  educational  institution  is  without  consideration  and 
cannot  be  enforced.''  When  a  subscription  paper  did  not  set  forth 
any  consideration,  but  the  complaint  averred  that  the  considera- 
tion of  the  subscription  by  the  defendant  and  others  was  the 
agreement  of  the  plaintiffs,  as  trustees  of  a  religious  society,  to 
recover  the  old  church  edifice  and  to  build  a  new  one  on  the 
same  site,  and  it  alleged  that  in  consideration  of  the  subscriptions 
the  trustees  had  removed  the  old  building  and  erected  a  new 
one  in  its  place,  at  a  cost  of  several  thousand  dollars,  and  the 
proof  established  the  truth  of  the  averment,  held  that  the  trustees 
in  an  action  upon  the  subscription  paper  were  entitled  to  recover." 
So  a  subscription  agreeing  to  pay  the  trustees  of  a  church  a  cer- 
tain sum  jper  annum  for  the  support  of  a  minister  so  long  as  he 
remains  the  regular  minister." 

On  a  subscription,  the  third  installment  of  which  was  to  be  paid 
when  a  building  shall  be  completed  as  a  medical  college,  the  sub- 
scriber is  not  liable  if,  before  completion,  the  building  be  trans- 
ferred to  an  institution  for  the  education  of  females.''  So  where 
the  members  of  an  incorporated  church  signed  an  agreement  to 
pay  a  certain  sum  per  annum  for  the  support  of  a  minister,  but 
the  church  was  afterward  incorporated  and  the  minister  received 

^  Pennington  V.  Oibson.lQ  How.  (U.  Union   Sem.  y.  Brownell,  37  id.  535; 

S.)  81.  Dansoille,   etc.,  v.   WelcJt,  38  id.  231  • 

"^  The  general  remarks  in  last  case  Watldns  v.  Eames,  9  Cusli.  537  ;  Re- 

sliould  be  qualified  as  the  court  was  formed,  etc.,^.  Brown,  17  How.   2S8, 

ppeaking  of  such  and  of  common-law  21)  Barb.  335,  24  How.  7G  ;    TruHtees, 

pleading,   see    2   Abb.    U.   S.  Pr.    50.  etc.,  v.  Robinson,  21  N.  Y.  234 ;  Wdyne, 

By  statute,  just  paB^ed,  the  rules  of  etc.,  y.  Smith,  ZQ  Barb.  577,40  id."  72 ; 

pleadings  in    action.'^   id   law   are  the  but  see  last  case,  said  to  be  reversed,  41 

same  in  the  Federal  as  the  State  courts.  jS\  Y.  620;  Hammond  v.  Shepard,29 

Act  of  Congress  approved  June  1, 1372,  How.  188  ;  Wai/ne,  etc.,  v.  Devinnei/,  43 

5  Alb.  Law.  Jour.  385;  17  U.  S.  Stat.  Barb.  220;    Hntchim  v.  Smith. 'Mi  id. 

at  Large,  197,  i^  5.  235,  Theobald  Pr.  and  Surety,  209, 210 ; 

^  Up'>n  the  subject,  generally,  see  1  see  Slociun  v.  Barry,  34  How.  320,  38 

Pars   on  Cont.,  5t"h  ed.,  452-5.  N.  Y.  46, 4  Abb.  N.  S.  309  ;    Van  Rem- 

*  Tru.ste.es,  etc.,  y.  Steimrt,  1   N.  Y.  seller  y.  Aiksn,  <i^l^.Y.\M;  Trustees 

581,  2  Dt'n.  403  ;  Stoddart  v.  Cleveland,  v.  Gar  my,  53  111.  401,  5  Am.  Rep.  51 ; 

4  How.  148;  Hauimondy.  Shepard,  29  Lathropy.  Knapp,  27  Wis.  214;  see 

id.  188 ;   Van  Rensselaer  v.  Akin,  44  Pitt  v.  Gentle,  49  Mo.  74. 

N.Y.I  26;  see  McAaley  y.  Billing  er,  ^  Diefendorf   v.     Trustees,    etc.,    20 

20  Johns.  89.  Johns.  12. 

'  Burner  v.  Perrine,  9  Barb.  202,  15  '  Wo7'cester,etc.,y.Big6low,QQTa.j,4d8. 
id.  249,  13  N.  Y.   18 ;    Richmondtille 


with  a  view  to  a  future  incorporation  may  be  recovered  upon  by 
the  corporation  when  formed.' 

After  one  has  signed  a  valid  subscription  he  cannot  withdraw 
or  countermand  it.' 

Substitution  or  subrogatiou/ —  A  surety  who  pays  a  debt  is 
entitled  to  be  substituted  in  the  place  of  the  creditor  as  to  all 
securities  thereof  which  he  holds." 

If  the  creditor  have  released  or  discharged  such  a  security  he 
cannot  recover  of  the  surety  ;'  and  if  he  pay  the  debt  without 
knowledge  that  such  a  security  has  been  lost  by  the  creditor  he 
may  recover  it  back.'  But  an  indorser,  who  indorses  and  trans- 
fers a  note  for  value,  is  not  entitled  to  the  benefit  of  this  rnle.* 

A  surety  must  pay  the  debt  before  he  is  entitled  to  subrogation." 

But  a  surety  for  part  of  a  debt  is  not  entitled  to  the  benefit  of 
a  security  given  by  the  debtor  to  the  creditor  at  another  time  for 
another  part  of  the  debt.'" 

A  creditor  is  entitled  to  the  benefit  of  a  security  held  by  the 
surety."  A  tenant  who  is  compelled  to  pay  ;in  incumbrance  to 
protect  his  term,  is  entitled  to  be  subrogated  lo  the  rights  of  the 
holder."  If  A  agrees  to  pay  a  mortgage  ou  B's  land,  and  B  sells 
to  C,  the  latter  may  compel  A  to  pay  it."  A  surety,  by  refusing  to 
take  the  control  of  a  judgment  and  execution  against  the  princi- 
pal debtor  when  offered  to  him  by  the  creditor,  may  deprive  him- 


1  Van  VUeden  v.  Wells,  6  Johns.  85. 

*  The  Reformed,  etc.,  v.  Brown,  17 
How.  287,  2-1  id.  7tJ,  29  Barb.  335 ;  see 
SHhh'A/  V.  Angle,  37  N.  Y.  626;  In  re 
National, 'etc.,  L.  R.,  5  Ch.  App.  309; 
Sproat  V.  Porter,  9  Mass.  300 ;  Waj/ne, 
etc.,  V.  Smith,  36  Barb.  577;  People, 
etc.,  V.  Balch,  8  Gray,  303  ;  also,  Rector, 
etc.,  V.  Crniuford,  43  N.  Y.  476,  re- 
vffF.sing  5  Rob.  100,  where  it  was  held 
in  the  court  below  the  subscripfion 
was  not  for  the  piir]wses  of  the  corpo- 
ration but  a  separate  and  distinct  one. 

'  Kidwellij,  etc.,  v.  Raby,  2  Price,  93. 

*  Upon  the  subject,  generally,  see 
1  Story's  Eq.  Jur. ,  ^^  507, 589, 635, 398 <>, 
439,  note,  502,  567,  035-8,  2  id.,  i^^ 
1227-9  ;  Smith's  Man.  of  Eq.,  1st  Am. 
ed.,,S56;  Williams's  Pers.  Prop.  108, 
indrtj.  p.  190  of  5th  Am.  od.  and  ex- 
haustive note;  Willard's  Eq.  110-112. 

'  Wrirjht  v.  Morky,  11  Vesey,  22-3; 
Parton.i    v.    Uriddork,   2    Vern.    608; 


-,  2  Freem.  Rep.  97,  and 


Cooke  V.  - 

Hovenden's  note  ;   Chester  v.  Bank,  16 

N.  Y.  336. 

6  Pitts  V.  Congdon,  2  N.  Y.  352  ;  Mat- 
thexcs  V.  Aikin.  1  id.  595  :  Leicis  v. 
Palmer,  28  id.  275-6 ;  Schroeppel  v, 
Shaw,  3  id.  446  ;  HoiTard  v.  IlaUcy,  4 
Sandf.  505,  8  N.  Y.  271  ;  Bnffnlo,  etc.  v. 
Howard,  35  id.  504-5  ;  Eluood  v.  Be- 
fendorf,  5  Barb.  398 ;  Bachelder  v. 
Fiske,  17  Mass.  464 

■■  Bank  of  Kingston  v.  Chester,  16  N. 
Y.  336 :    Lake   v.  Artisans'  Bank,    1 
Trans.  App.  71,  3  Abb.  N.  S.  210. 
«  Pitts  V.  Congdon,  2  N.  Y.  352. 
9  IJiggins  v.  Wright,  43  Barb.  464-5 

'"  Wade  V.  Coope,  2  Simons,  155. 

"  Curtis  V.  Tyler,  9  Paige,  431 ;  Rici 
V.  Deioer/,  13  Gray,  47. 

'•^  Avekll  V.  Taylor,  8  N.  Y.  44. 

'^  Kinney  v.  McCullock,  1  Saudf  V\\ 
370. 


self  of  the  ri^4it  to  demand  subrogation  when  the  debt  is  sought 
to  be  collected  from  him.'  Where  the  creditors'  judgment  includes 
other  demands  than  that  for  which  the  surety  is  liable  he  may 
assign  the  excess,  reserving  a  right  to  collect  the  debt  for  which 
tlie  surety  is  liable  by  a  separate  judgment."  If  one  of  two  sure- 
ties give  collateral  security  for  the  payment  of  the  debt  for  which 
he  is  surety,  his  co-surety  does  not,  by  paying  the  debt,  become 
entitled  to  the  benefit  of  that  security.'  The  last  indorser  obtained 
judgment  against  the  maker  and  indorsers.  After  levy  on  sufficient 
property  of  the  maker  of  a  note,  or  the  sherifi'  becoming  liable 
for  it  because  of  an  insufficient  levy,  the  third  indorser  paid  the 
judgment.  Held,  that  having,  by  his  interference,  released  the 
lien  under  the  levy,  or  the  responsibility  of  the  sheriff,  either  of 
which  would,  if  enf)rced,  have  relieved  the  prior  indorsers,  it 
would  be  inequitable  to  make  those  indorsers  or  their  property 
liable  to  him  for  the  debt/ 

One  who  pays  a  debt  for  which  he  is  not  personally  liable,  and 
which  is  not  a  charge  upon  his  property,  is  not  entitled  to  be 
subrogated  to  a  lien  which  tlie  creditor  had  upon  the  estate  of  the 
debtor.'  An  insurer  of  a  mortgage  may,  however,  contract  for 
being  subrogated  to  his  rights,  in  case  of  loss  and  payment.'  The 
court  will  ordinarily  go  no  farther  than  to  dii'ect  a  subrogation, 
leaving  conflicting  claims  to  be  determined  by  future  adjudication. 
It  is  not  a  valid  objection  to  the  subrogation  of  a  defendant  in 
foreclosure,  in  the  place  of  the  plaintiff,  that  the  sale  may  be 
abandoned,  and  subsequent  incumbrancers  miss  their  opportunity 
of  reaching  the  surplus  moneys.  If  the  court  has  power  to  compel 
the  holder  of  a  judgment  of  foreclosure  to  sell  the  mortgaged 
pi-emises,  it  will  be  exercised  only  in  extraordinary  cases.'  A 
juirior  mortgagee  or  judgment  creditor  has  a  right  to  protect  his 
lien  or  interest,  by  paying  a  prior  mortgage  due  and  payable,  and 
if  he  does  pay  it  he  succeeds  by  subrogation,  on  settled  principles 
of  equity,  to  tlie  rights  and  interests  of  such  prior  mortgagee  in 
the  lands,  as  security  for  the  amount  so  paid,  without  any  assign- 
ment or  act  of  transfer  by  or  on  the  part  of  the  prior  mortgagee ;' 

'  HiMeU  V.  Carpenter,  5  N.  Y.  171.  «  Springfield,  etc.,  v.  Allen,  43  N.  T. 

5  Jhihhdl  V.  Carpenter,  5  N.  Y.  171.  389. 

3  Boirditrh  v.  Green,  3  Mete.  3i')0.  '  McLean  v.  Tompkins,  18  Abb.  25. 

4  Perleii  V.  Onderdonk,  10  Barb.  502.  *  Ellsworth  v.  LockiDood,42  N.  Y.  9& 
»  Wilke.i  V.  Harper,  1  N.  Y.  r,8G. 


140  COMPLAINT  IN   PAETICULAE   CASES.       [CII.  IV  A. 

but  if  a  third  person  take  a  conveyance  to  secure  a  debt  as  to 
whicli  A  is  surety,  and,  on  payment  of  the  debt  by  A,  pursuant 
to  the  agreement,  convey  the  property  to  him,  A  cannot  insist 
upon  being  subrogated  to  tlie  rights  of  a  prior  incumbrancer.'  If 
an  agent  be  instructed  to  insure  and  make  a  parol  agreement  for 
insurance,  he  cannot  compel  his  principal  to  litigate  with  the  insur- 
ance company  for  a  policy,  but  is  liable  to  his  principal  for  not 
procuring  the  insurance.  He  must  pay  his  principal  when,  if  he 
have  a  valid  verbal  contract,  he  may  be  entitled  to  an  assignment 
of  it  or  may,  irrespective  of  a  statute  right  to  sue  in  his  own 
name,  sue  on  it  in  the  name  of  his  principal.* 

Surety."  —  A  surety  is  not  liable  beyond  the  terms  of  his  con- 
tract.* Where  one  executed  a  bond  as  surety  for  the  due  account- 
ing for  moneys  received  by  a  clerk  on  a  salary,  and  his  employers 
changed  it  to  a  commission  on  sales  made  by  him,  held,  the  surety 
was  not  liable  for  moneys  thereafter  embezzled  by  the  clerk.* 
The  sureties  of  a  public  oflicer  are  not,  however,  discharged  by 
the  imposition  of  new  duties  of  a  similar  nature  and  character 
upon  their  principal ;°  so  when  the  term  of  olhce  is  extended,  the 
bond  providing  for  an  accounting  under  any  future  election  ;^  so 
sureties  on  an  appeal  bond  execute  it  subject  to  changes  in  the  statute 
whicli  nuiy  increase  their  liability.*  But  the  sureties  of  a  cashier, 
who  agree  to  become  liable  for  his  mistakes  or  defalcation,  are 
exonerated  from  liability  if  the  capital  of  the  bank  is  increased.' 
Where  one  signed  a  bond  as  surety  for  the  payment  of  all  moneys 
received  by  an  officer  who  was  also  a  banker,  and  the  officer  paid 
certain  drafts  on  him,  as  such,  in  his  own  bank-notes,  and  also 

1  Ellsworth  V.  Lockioood,  43  N.  Y.  97.     1  Conw.  Rob.  Prac.  490-8,  3  id.  438, 439, 

2  Manny  v.  Bunlap,  1  Woolworth's    513,  239,  341,  4  id.,  title  Surety,  Tidd'a 
C.  C.  K.  373.  Prac,  Daniell's  Ch'y  Prac. 

2  Upon  the  subject,  generally,   see  ■*  l^anlnp's  note  to  Archer  v.  Hudson, 

Burge  on   Surety,  Pitman  on   Surety,  7  Beav.  5G4,  Banks's  ed. 

Theobald   on    Principal   and    Surety,  ^  Nortliwestern,  etc.,  v.  Whinrap,  10 

Whittier  on  Guaranty  and  Suretyship,  Exch.  77  ;  Bonar  v.  McDonald,  S  House 

Williams   on    Personal    Property,  108  of  Lords  Cases,  23G. 

«K«?-5'.  p.  189  (3d  Am.  ed.),  and  exhaus-  '^People    v.    Vilas,  36    N.   Y.    4o9; 

live  note  ;  Mnak's  note  to  Clarke's  Cli'y  Mayor,   etc.,   v.   Ryan,  4  Trans.    App. 

75,  marg.  p.;   and    also   Index,    title  3G3  ;  Skillett  v.  Fletcher,  L.  R.,  3  Cora. 

Surety,  Story's   Eq.,  Smith's  Man.  of  PI.  409,  Exch.  Chamber. 

Eq.,  Adams's  Eq.,  Willard's  Eq.,  Pars.  '  Oswald  v.  Mayor,  etc.,  5  House  of 

on    Cont.,   Addison  on  Cont.,   Smith's  Lords  Cases,  856. 

Man.  of  Com.  I^aw,  Bouvicr's  Institutes,  *  Horner  v.  Lyman,  4  Keyes,  337. 

Krrr  on  Inj.  71-78,  \^'atc■rman's  Eden  '  Grocers'    Bank    v.   Kingman,     16 

on  inj.,  63,  et  :<vq.,  S^'atei man  on  Set-off,  Gray,  473. 


en.  IV  A.]       COMPLAINT  IN"   PARTICULAR   CASES.  441 

gave  one,  wlio  lield  siicli  a  draft  on  him,  his  own  draft  on  London, 
held  that  both  were  payments  and  tlie  sureties  were  not  Hable 
although  tlie  banker  thereafter  failed  the  same  day.'  If  one 
become  surety  to  a  lirm  he  is  not  liable  after  one  of  the  partners 
retires ;''  so  a  guaranty  of  advances  to  two  does  not  cover  those 
made  to  one.*  A  cashier's  surety  is  liable  until  he  is  re-elected  or 
reappointed,  although  allowed  to  hold  over  the  usual  term.*  If  one 
partner  sells  to  another,  wlio  agrees  to  pay  the  firm  debts,  the 
retiring  partner  is  a  surety  for  the  debts,  and  a  creditor  with  knowl- 
edge of  the  facts  is  bound  to  so  consider  him.^ 

Survivor/  —  The  representatives  of  a  deceased  partner  cannot 
be  joined,  as  defendants  with  tlie  surviving  partner,  in  an  action 
upon  a  partnership  debt,  unless  the  complaint  show  plaintiff's 
inability  to  procure  satisfaction  from  the  survivor ;'  but  it  is  not 
necessary  to  show  the  remedy  at  law  against  him  has  been  ex- 
hausted.* So  as  to  any  parties  who  were  originally  jointly  liable.' 
The  representatives  of  a  surety^  jointly  but  not  severally  bound, 
are  not  liable  even  in  equity."'  But  if  an  obligation  is  joint,  on 
proof  that  the  intestate  receis^cd  part  of  the  consideration  his 
executors  are  liable." 

Tax. —  Where  a  tax  has  been  collected  and  paid  into  the 
treasury  of  a  municipal  corporation,  no  action  lies  to  recover  it 
back'^  until  after  the  assessment  is  reversed  on  certiorari."     Nor 

*  Onardians,  etc.,  v.  Green,  1  Hurl.  Russ.  196,  Banks's  ed. ;  Rkliter  v.  Pop- 
Si  Norm.  884.  penhausen,  42  N.  Y.  373.     See  Stahl  v. 

'^  The  Chancellor,  etc.,  v.  Baldwin,  5  Stahl,  2  Lans.  60. 
Mees.  &  Welsh.  580.  «  Piper  v.  Poppenhatcsen,4S  N.  Y.  6S. 

^  Gremer  y.  Higginson,l'Ma,son,Q:2'd,        '  Moak's    note  to  Clarke's  Cli.   171, 

337.  marg.  p. ;  Hidbert  v.  Ferguson ,  40  Ho v 

*  Sparks  v.  Farmers'  Bank,  9  Am.  478 ;  Williams  on  Pars.  Prop.  28o. 
li.  Reg.  N.  S.  365.  marg.  p. 

'"  Golgrooe  v.  Tallman,  3  Lans.  97.  '"  Moak's  note,  supra  ;  Hulbert  v.  Fer- 

*  Upon  the  subject,  generally,  see  guson,  40  How.  478 ;  Fiekien  v.  LaJiem^, 
ante,  193,  mnrg.  p.;  Moak's  note  to  6  Blatchf.  .'321;  United  States  v.  Ar- 
Clarke's  Ch.  171,  marg.  p.;  1  Story's  chrr's  Ex'rs,  1  Wallace,  Jr.,  173,  over- 
Eq.  Jur.,  g^  162-164;  Williams  on  ruling  United  States  v.  Cushman,  2 
Pers.   Prop.  283,  236,  marg.  pp.,  and  Sumner,  428. 

notes  to  jcI  Am.  ed. ;  Parsons  on  Part-        "  Moak's  note,  supra  ;  Hulbert  v.  Fer- 

nership,  Story's  Eq.  PI.,  §§  169,  177-9  ;  guson,  40  How.  478  ;    Dunlap's  note  to 

Addi.-^on  on  Cont.,  6th  Ehg.  ed.,  645,  Bawstone  v.  Parr,  3  Russ.  511. 
709-774,  845-7,  1048;  Best  on  Ev.,  5th       '-  Swift  v.  Poughkeepsie,%1  N.  Y.511 ; 

Eiig.  ed.,  524  ;  Cowen's  Treatise,  Kings-  Foster   v.    Van   Wyck,   3   Trana    Anp 

ley's  ed. ;  3  Conw.  Rob.  Pr.  163-4,  id.  196,  4  Abb.   X.   S.  469 ;  Royers  v.  In- 

108,  2  Wait's  Law  and  Pr.  275,  2?8.  habitants,  etc.,  58  Me.  390 . 

'  Moak's  note  to    Clarke's  Ch.    171,       '^  Bank    of    CominonwealtJt    \.    Tlu 

marg.  p. ;    note   to  Cowal  v.  Sikes,  2  Mayor,  etc.,  43  N.  Y.  187. 

56 


442  COMPLAINT   IX   PAETICULAR   CASES,       [CH.  IV  A. 

will  an  equitable  action  lie  to  restrain  the  collection  of  an  illegal 
tax.'  The  remedy  is  by  certiorari  to  reverse  the  assessment  or 
by  mandamus  to  compel  the  assessors  to  strike  the  assessment 
from  the  rolls."  Although  if  the  property  of  a  party  be  partly  in 
each  of  two  towns,  and  he  be  assessed  in  each,  an  interpleader 
suit  will  lie.^  The  statute  now  provides  that  for  real  estate  so 
situated  the  owner  shall  be  taxed  in  the  town  in  which  he  resides.* 

Tax  payer.  —  There  ai-e  many  cases  and  much  conflict  upon 
the  question  as  to  when  a  tax  payer,  as  such,  may  maintain  an 
action.  We  think,  however,  the  result  of  the  cases  may  be  stated 
to  be  that  a  tax  payer  cannot  maintain  an  equitable  suit  on  behalf 
ot  himself  and  all  others  similarly  situated  and  interested  to 
restrain  the  collection  of  a  tax  unless  there  be  some  other 
acknowledged  head  of  equity  jurisdiction  f  such  as  that  the  enforce- 
ment of  the  tax  would  lead  to  a  multiplicity  of  suits  ;'  or  that  the 
plaintifl's  real  estate  will  be  subject  to  a  cloud ;"  in  the  latter 
cases  the  suit  would  not  probably  lie  in  Kew  Yoik ;'  although 
after  a  sale  for  taxes,  the  owner  may  maintain  an  action  to  remove 
a  cloud  upon  his  title  by  reason  thereof,  if  the  papers  be  not  void 
upon  their  face,  so  as  to  themselves  show  the  defect.*  It  is  only 
where  there  is  no  adequate  remedy  at  law  that  a  court  of  equity 
will  interfere.' 

Nor  will  an  action  lie  by  a  tax  payer,  on  behalf  of  himself  and 
others,  to  restrain  the  doing  of  any  act  as  to  which  he  has  no 
other  interest  than  one  common  to  all  other  citizens  or  freeholders 

1  A)futHal,  etc.,  V.  The  Mayor,  etc.,  32  1S3,  8  Bosw.  6S3,  83   Barb.    322,    20 

How.  359;  McDonald  v.  Murphree,  45  How.  Pr.  41(3;  Uaabrouck  v.  Kingston, 

Miss.  705.  Cifc,  3  Trans.  App.  106,  3   Keye.s,   480; 

''  Mutaid,  etc.,v.  The  Mayor,  etc.,  Z2  Blake  v.   City  of  Brooklyn,  2r5   Barb. 

How.  ii~)d  ;  People  V.  Atises.wrs.iOyi.Y.  301;   VonB''.cky.  Village  of  Bondout, 

154;  Pople  V.  Assessors,  U  Barb.  \4S;  15   Abb.  50,   affirmed,  41   N.  Y.   619; 

Bank,  etc.,  v.  City,  etc.,  4  Paige,  3'J'd  ;  Brook' yii,  etc.  \.  Coney  Island,  etc., 'do 

Wilsni  V.  Mayor,  4  E.  D.  Smith,  675  ;  Barb.  365. 

People  y.  C>7nmi.moners,'2'-j  'S.Y.  iii,  ^  Dows    y.    Chicago,   11    Wall.    108; 

21  How.  385,  33  Barb.  116  ;  see   People  McDonald  v.  Murphree,  45  Miss.  705 

V.  Dolan,  33  N.  Y.  59 ;  People  ex  rel.  ''  Mugee  v.  Cutler,  43  Barb.  239. 

Buffalo,  etc.,  33  How.  150,  48  Barb.  173.  «  Cox  v.  Clift,  2  N.  Y.  118 ;  Peck  *•. 

*  Eedjiild  v.  Supervisors,  Clarke's  Bromn,  2  Rob.  128 ;  Ward  v.  Detoey, 
Ch.  42  ;' affirmed.  3  Ch.  Sent.  92.  16   N.   Y.  519  ;   Hatch  v.    Bvffalo,  39 

*  Lawa  1871,  vol.  1.  p.  565.  id.  276  ;  Allen  v.  Buffalo,  39  id.  386; 
«  Bos.velt  V.  Draper,  2'i  N.  Y.  318;     Crooke  v.  Andrews, -io  id.  547;  Lattin 

DooVatle  v.  Supirrrisors,   18    id.    155  ;  v.  Mi'Carty,  41  id.  107. 
tjufqiwhanna  Bank  v.  Supervisors,  25        '  .McDonald  v.  Murphree,   45    Miss 

id.  312  ;  Mutual,  etc.  v.  Superrisors,  32  705. 
How.  ;3.59,  2  Abb.  X.  S.  233,  3  Ki-yea, 


CII.  IV  A.]       COMPLAINT   IN   PARTICULAR    CASES.  443 

of  the  locality  or  State,  as  to  restrain  tlie  erection  of  a  new  town.' 
A  tax  payer  cannot  restrain  a  municipal  corporation  wherein  he 
resides  from  paying  out  money  collected  on  the  ground  that  the 
cun'ract  was  not  made  according  to  la:*v^  ',^  even  though  he  be  a 
ci-editor  of  the  corporation/  Nor  can  he  restrain  the  laying  down 
of  a  railway  in  a  public  street  *  unless  he  own  the  fee  of  the  street 
over  which  the  projected  railroad  is  to  be  laid/  or  it  would 
amount  to  a  nuisance  or  result  in  a  special  injury  to  his  premises.* 
JSTor  can  one  railroad  to  which  such  a  privilege  has  been  granted 
restrain  another  company,  upon  which  similar  rights  have  been 
conferred,  from  laying  down  one.' 

The  people  cannot  maintain  an  action  to  restrain  the  issuing  of 
bonds  by  a  town  to  aid  in  the  construction  of  a  railroad  ;*  although 
they  may  to  restrain  a  corporation  from  entering  into  a  contract 
not  authorized  by  law." 

Tenants  in  common.'" — One  tenant  in  common  may  sever  his 
share  from  the  common  mass."  ;ind  if  his  co-tenant  refuse  to  allow 
him  to  do  so  it  is  equivaloni  to  conversion,  and  he  is  liable  in 
trover.'^  One  tenant  in  coninK)n  cannot  maintain  replevin  against 
his  co-tenant,  or  his  bailee,  for  the  possession  of  a  single  indivisi- 
ble article.'^     One  tenant  in  common  who  sells  or  disposes  of  the 

'  DooliUle  V.  Supervisors, 18  N.Y.  155.  plaining  Davis  v.  Mm/or,  2  Duer,  663  ; 

^  Brady  v.  Ma.yor,  35  How.  81  ;  Pull-  People  v.  Clark,  53  Barb.  173;  People 

man  v.  Mayor,  54  Barb.  169,  reversing  v.  Mayor,  etc.,  27  How.  34 ;  see  Attor- 

49  id.  57,  2  Abb.  N.  S.  29.  But  sey  ney-Oeneral  v.  Salem,  103  Mass.  140-1. 
Milhau  V.  Sharp,  15  Barb.  193, 27  X.  Y.        "  People  v.  Mayor,  etc.,  32  Barb.  35, 

611,  28  Barb.  228.  9  Abb.  253,  10  id.   144,19  How.  155; 

3  Bo.sevelt  v.  Draper,  23  N.  Y.  318.  People  v.  Mayor,  32  Barb.  102. 

*  Davis  V.   Mayor,    14   N.    Y.   500  ;       '"  Upon   the   subject,  generally,  see 
People  V.  Kerr,  27  id.  188.  Addison  on   Torts,  Hilliard  ou  Torts, 

'  Kelsey  v.  King,  33  How.  39  ;  Craig  Cowen's  Treatise,   Kingsley's  ed.,   i;^ 

V.  Rochester,  39  N.  Y.  404,  39  Barb.  494;  183,  819,  620,  759 ;  Kent's  Com.,  Pars. 

Wager  v.  West  Troy  Union,  etc.,  25  N.  on  Cont.,  Add.  on  Cout.,  Estee's  PI.  and 

Y.  528;  C'l.rpenter  v.   Oswego,  etc.,  2i  Pr.  3  Conw.  Rob.  Pr.  157-175  ;  Smith  on 

id.  655  ;  WtU^ams  v.  iV.  Y.  Ceiit.  li.  It.,  Real  and  Pers.  Prop.,  titles  Joint  Tcn- 

16  id.  97 ;  Ellicottmlle,  etc.,  v.  Buffalo,  ants  and  Tenants  in  Com.,  Barbour's 

etc.,  20  Barb.  644  ;  People  v.  Law,  olid.  Ch.  Pr.,  Daniell's  Ch.  Pr.,  Story's  Eq., 

494.     The   case   of   Brooklyn,  etc.,   v.  g§  466,  505;    Tidd's  Pr.,   titles  Joint 

Brooklyn,   etc. ,  33  id.  420,  is  not  good  Tenants  and  Tenants  in  Common, 

law,  and  it  is  doubtful  whether  2Zi'a(',/t  ^^  CJtannon   v.    Lusk,    2    Lans.    211; 

V.  Barman,  49  id.  496,  is.  Tripp  v.  Riley,  15  Barb.  333 ;  Forbes 

«  People  V.  Kerr,  20   How.   130,  27  v.  Shnttuck,  22  id.  568. 

N.   Y.   188;   Milhau   v.  Sharp,  27  id.  ^^  Channon  v.  Lusk,  2  hans.  211,216. 

611.  15  .Barb.  193,28  id.  228.  note;  Lobdell  v.  Stoioill.  37  How.  88; 

''  Br'/oklyn,  etc.,  V.  Coney  Island,  etc..  See    Farr    v.  Smith,    9   Wend.    338. 

35  Barb  365,  expbuning  i?rtfaW?//i,  cic,  '''^Russell    v.    lUlen,   13   N.    Y.    173; 

V.  Brooklyn,  etc.,  32  id.  35S.  Withnm  v.  Witham,  2  Alb.  Law  Jour. 

•  Pioplc  V.   Miner,  2  Lans.  396,   ex-  401,  57  Maine,  447  ;  Foster  v.  Magee.2 


444  COMPLAIXT   IIS"    PAP.TICULAR   CASES.        [CH.   IV  A 

entire  property  is  liable  to  Ills  co-tenant.'  So  if  he  remove  a 
fixture  so  as  to  destroy  its  nse."  A  court  of  equity  will,  in  a  proper 
case,  decree  partition  of  personal  property  between  tenants  in 
common.'  An  agreement  to  work  a  farm  on  shares  makes  the 
parties  tenants  in  common  of  the  products.*  One  tenant  in  com- 
mon of  real  estate,  who  enjoys  the  whole  estate,  without  any 
demand  by  his  co-tenants  to  be  allowed  to  enjoy  the  premises 
with  him,  is  not  liable  to  his  co-tenant  for  such  use,  or  the  profits 
thereof,^  unless  he  have  received  money,  from  some  third  person, 
beyond  his  share,*  even  though  the  occupancy  be  after  a  lease 
from  his  co-tenant  of  his  share  ;'  although  if  one  co-tenant  receive 
rent  from  a  third  person,  he  is  by  statute  liable  to  his  co-tenant 
for  his  share  thereof.*  One  tenant  in  common  cannot  recover 
of  his  co-tenant  money  expended  in  repairs,  without  a  request  to 
join  in  them.'  If  one  tenant  in  common  forcibly  disposses  his 
co-tenant,  he  is  a  trespasser."  One  tenant  in  common  cannot 
recover  the  whole  of  the  agreed  price  for  the  use  of  the  property." 
It  has,  however,  been  held  in  Massachusetts  that  one  who  buys 
standing  grass  from  a  tenant  in  common,  of  real  estate,  in  occu- 
jxition  thereof,  and  cuts  and  harvests  the  grass,  cannot  avoid  pay- 
ing him  the  full  contract  price  for  it  on  the  ground  that  the  co-tenant 
had  forbidden  the  payment.'''  Although  one  tenant  in  cojnniou 
may  sue  another,  yet  two  of  them  cannot  join  in  a  suit  against  a 
third,  for  they  have  no  joint  interest." 

Tender.'*  —  In  case  one  defrauded  desires  to  rescind  on  the 
ground  of  the  fraud  he  need  not  tender  back  money  received 
provided  the  party  defrauding  have  realized  from  the  use  of  the 
property  more  than  the  amount  of  purchase-money  paid  ;'*  nor  need 

Lans.  184.  See  Van  Orman  v.  Phelps,  Ilendcrson  v.  Eason,  17  Q.  B.  (70  lOng. 
9  Barb.  500,  506.  C.  L.)  701,  9  Eng.  Law  and  Eq.  1:537. 

*  JSfowle/i  V.  Colt,  G  Hill,  461  ;   Weld        '  Brnsscr  v.  Dresser,  40  Barb.  iiOO. 

V.  Olioer.  31  Pick.  559 ;  Farrar  v.  Bes-        «  1  R.  S.  750,  <  9.  1  Edm.  Stat.  701 ; 

rcirk,  1  Mees.  &  Wela.  688  ;   White  v.  Woolver  v.  Kaapp,  18Barb.  267. 
Osborn,  21    Weud.   72;    Dyckman    v.        ^  Mumford  v.  Brown,  6  Cow.  475; 

Valiente,  42  N.  Y.  549.         '  Taylor  v.  Bnldicin,  10  Barb.  583,  626. 

*  Benedict  v.  Howard,  31  Barb.  569.         '"  McGerrill  v.  Murphy,  1  Hilt.  132. 
3  Tinney  v.  Stebbins,  28  Barb.  399.  "  Foster  v.  Maqce,  2  Lans.  183. 

*  WUhe'r  V.  Sisson,  53  Barb.  358.  ^^  Brown  v.    Willington,    106     Mass. 
5  Woolever  v.  Knapp,  18  Barb.,  '265 ;  318. 

Sf(,tt  V.  G Items"]!,  fJO  id.  164;    Wilcox  '^  Farrar  v.  Pearson,  59  Maine,  561. 

V.     Wilcox,  A:'6   id.    337;    McMahon   v.  ''•  See  ante,  title  "  Performance." 

B'lrchdl,  3  Pliillips.  137.  '*  Pearse  v.  Pettis,  47  Barb.  276  ;  see 

^  Peck  V.   Carpenter,  7   Gray,   283;  Mattewan 'v.  Bentley,\?j  lA.  ^^l. 


C;i.   IVA.]      COMPLAINT   m   PARTICULAR  CASES.  445 

lie  in  sucli  case  tender  back  worthless  stock  if  lie  seek  to  recover 
damages  for  the  frauds  In  snch  case  if  the  vendee  have  sold  to 
another,  purchase-money  received  by  the  vendor  need  not  be 
tendered  to  the  purchaser  from  the  vendee/  although  ordinarily 
tender  of  performance  must  be  made  to  an  assignee.'  In  a  suit 
by  a  vendee  to  recover  damages  for  failure  by  the  vendor  to 
perform  a  contract  of  sale  he  need  not  aver  tender  of  perform- 
ance if  he  show  the  vendor  have  put  it  out  of  his  power  to 

perform." 

Trade-mark.'  —  This  species  of  property  has  recently  become 
of  much  importance,  and  the  books  are  full  of  closely  fought  cases. 
The  manufacturer,  or  person  for  whom  goods  are  manufactured, 
has  a  right  to  distinguish  the  goods  he  manufactures  or  sells  by  a 
peculiar  mark  or  device,  in  order  that  they  may  be  known  as  his 
in  the  market,  and  that  he  may  thus  secure  the  profits  that  their 
superior  repute  as  his  may  be  the  means  of  gain,  and  this  right 
will  be  protected  by  injunction."  Where  one  had  adopted  the 
term  "  Cocoaine  "  to  designate  a  hair  oil,  the  use  of  "  Cocoaine  " 
was  restrained  ;'  so  "McCardel  House"  to  designate  a  hotel ;'  so 
«  Ferro  Phosphorated  "  to  designate  a  new  medicine  ;'  "Yankee 
Soap  "  to  designate  a  shaving  soap ;'°  "  Scheidam  Schnapps  "  to 
designated  a  liquor ;"  so  when  plaintiff  published  a  paper  called 
"The  National  Pohce  Gazette,"  the  publication  of  one  called 
the  "United  States  Police  Gazette"  was  prohibited;"  so  the  use 
of  "  Bismarck  "  to  designate  a  particular  style  of  paper  collars  f 
so"Mrs.  Winslow's  Soothing  Syrup,'"  and  "Akron"  to  desig- 

1  mwUrry  v.  GarUnd,Z\  Barb.  122.     Inj.  405,  525,  Addison  on  Torts.  Hill 

♦  Peavm  V  Pettu,  47  Barb.  276  ;  see     on  Torts,  2  Broom  s  Com  5b5.  Brooni  s 
Kinney  v.  Kiernan,  2  Lans.  492.  Com.  on  Com^  Law,  89,  054,  Est^e  s  PI. 

^Bn^tan    v.  McAndreic,    10  Bosw.  and    Prac,  Mr.  Perkins  note  to  i?«r- 

130;    CookY.Kelley,^xA.Z^S,  1  Pars,  gess   v.    Bur  gens,   o  De  ^ex,  McN.    & 

on  Cont.,  5tb  ed. ,  346,  note  y.  Gord.  896  ;  Browne  on  Trade-marks. 

*  Monroe  v.  Reynolds,  47  Barb.  574;  «  WilUajns  v.  Johnson,  2  Bosw.  1. 
Karker  v.  Eaverh/,  50  id.  79 ;  Morange  '  Burnett  v.  ™«?^,  5  Abb.  N.  b. 
Y.Morris,    3   Keyes,    48;    McCool  v.  212,  3  Keyes  r94  9  Bosw  19o. 
Jacohvs,  7  Bob.  116.  «  M^^Cardel  v- i^-^f^". f  How.  120. 

6  Upon  the  subject,  generally,see  note  »  OasireU  v.  Bavis,  4  Abb.  iN .  b.  bdo, 

10  Abb.  Pr.  Rep.'  N.  S.  349  ;  also  note  11  How.  76.                              o  t?     „.  1 

Am.  Law  Reg.  N.  S.  707,  et  seq.,  Upton's  >«  Williams  v.  Johnson,  2  Bosw  1. 

Law  of  Trade-marks,  Lloyd's  Law  of  i'  Wolfe  v.  Gonlnrd,  lo  Abl.  336 

Trade-marks,  Coplnger's  Law  of  Copy-  "  Matsell  v.  Flamgan,  2  Abb.  N.  S. 

ri.^!:bt,  16  U.  S.  Statutes  at  Large,  210,  459.                         n,     -l         qr  w^w    i  i 

Daniell's  Cli'y  Prac,  2  Story's  Eq.  Jur.  "  Merserole  y   Tynherg,  36  How.  14 

§951,Suuth'sMan.  of  Com.  Law,  101,  4  Abb.  N.  S.  410. 

103,  marg.  'PP-,  Kerr  on  Inj.,  Hill,  on  "  Curtis  v.  Bryan.  36  How.  66. 


446  COMPLAIISTT   IIST   PAF.TICULAE   CASES.       [CH.  IV  A. 

uate  a  cement,  although  combined  with  other  words,  if  calculated 
to  deceive.* 

When  the  plaintiffs  had  for  years  been  carrying  on  business  at 
No.  22  Pall  Mall,  under  the  name  of  "  The  Guinea  Coal  Com- 
pan}',"  and  the  defendant  commenced  business  at  46  Pall  Mall, 
under  the  name  of  "  The  Pall  Mall  Guinea  Comjjany  "  held,  that 
although  plaintiff  could  not  appropriate  the  term  "  Guinea  Coal 
Company,"  yet  defendants  could  be  restrained  from  using  that 
name  in  a  particular  place,  to  wit :  "  Pall  Mall,"  in  such  a  way  as 
to  lead  persons  to  believe  that  his  business  was  that  of  the  plaintiffs." 
An  injunction  lies  at  the  suit  of  the  owner  of  a  peculiar  lyroduct 
of  nature^  to  protect  him  in  the  exclusive  nse  of  a  name  belong- 
ing to  it  alone,  and  properly  employed  by  him  as  his  trade-mark 
in  its  sale.  There  is  no  distinction  between  natural  and  those 
which  are  artificial.^  As  "  Congress  Spring,"  to  designate  medi- 
cinal waters  of  a  certain  spring.*  A  sale  of  the  spring  carries, 
without  an  assignment,  the  right  to  the  trade-mark.''  So  the  use 
of  numbers,  as,  "  303  "  and  "  753  "  to  designate  steel  pens,  if  cal- 
culated to  deceive,  will  be  restrained.*  A  son  of  the  same  name 
as  the  father  will  not  be  restrained  from  using  his  name  to  desiff- 
nate  an  article  manufactured  by  him,  although  the  father  has 
done  the  same  thing,  no  fraud  being  proved.' 

No  trader  can  adopt  a  trade-inark  so  resembling  that  of  another 
trader  that  persons  purchasing  with  ordinary  caution  are  likely  to 
be  misled,  though  they  would  not  Ije  misled  if  they  saw  the  two 
marks  side  by  side.  Nor  can  a  trader,  even  with  same  claim  to 
the  mark  or  name,  adopt  a  trade-mark  which  will  cause  his  goods 
to  bear  the  same  name  in  the  market  as  those  of  a  rival  trader  ^  — 
in  many  cases,  even  though  it  be  a  common  name.*  Each  case 
falling  within  the  latter  class  must,  however,  be  decided  upon  its 

'^  Nexi^man  V.  Alvord,^^  How.   108,  ^  Burgess  v. Burgess, ZY)QQiQ-s.,^lQ^. 

49  Barb,  588  ;  see  Burgess  v.  Burgess,  &  Gord.  896. 

3  De  Gex,  McX.  &Qord.89() ;  and  (7a;i-  '•  Seixo   v.   Frovezendo,  L.  R.,  1    Ch. 

die  V.  Deere,  4  Am.  Law  Times,  State  App.  192;  Williams  r.  Johnson,  2  Bosw. 

Courts  Rep.  267.  1  ;   Jos.  Dixon,  etc.   v.  Beyer  Guggen- 

**  Lee  V.  Haley,  L.  R.,  5  Ch.  App.  155  ;  heitner,  3  Am.  Law  Times,  State  Courts, 

see  Burgess  v.  Burgess,  3  De  Gex,  McN.  288,  elaborately  con.'jidered. 

&  Gord.  896.  »  Perry  v.  2>ueJiU,  6  Beav.  66  ;  Croft 

^  Congress,  etc.  v.  High  Rock,  etc.,  10  v.  7)-'<y,7  Beav.  84  ;  Clarke  v.  Freeman, 

Abb.  N.  S.  349.  11  id.'  113;  Reddc  v.  Norman,  3  Eng. 

*  Congress,  etc.  v.  High  Rock,  etc.,  19  Rep.,  L.  R.,  14  Eq.  348  ;  but  see  Canal 

Abb.  N.  S.  349.  Co.  v.  Clark,  13  Wall.  311. 

»  Q-Mott  V.  Kettle,  3  Duer,  624. 


Cir.  IV  A.]       COMPLAINT   IX   PAllTICULAR   CASES.  447 

own  merits.'  The  proprietor  can  have  but  one  trade-mark,  and  it 
must  be  affixed  to  his  goods.  Mere  declarations  or  advertisements 
cannot  confer  a  right  to  one."  The  principles  upon  which  equity 
protects  one  in  the  use  of  a  trade-mark  does  not  apply  to  the  pu'>- 
lication  of  newspapers  to  protect  the  propi-ietor  of  a  paper  in 
the  use  of  a  name  adopted  by  him  for  such  newspaper."  And  if 
the  names  are  so  far  different  that,  considering  the  dissimilarity 
of  type  and  general  appearance,  one  is  not  liable  to  be  mistaken 
for  the  other,  an  injunction  will  not  be  granted.*  The  trade-mark 
only  protects  the  proprietor  in  the  sale  of  the  particular  class  of 
goods  on  which  it  has  been  used.  If  it  has  been  used  on 
unjprinted  cotton  cloths  another  may  use  it  on  printed  goods.* 

If  only  a  small  quantity  of  goods,  with  the  trade-mark,  be  sold 
by  mistake  to  plaintiff's  agent,  the  action  will  not  lie.^ 

If  a  trade-mark  be  calculated  and  intended  to  mislead  the 
public,  the  courts  will  not  protect  its  use.*  If  used  by  an 
"  executor,"  "  assignee  "  or  "  successor  "  it  should  show  such  fact.'' 
Nor  will  a  court  of  equity  protect  a  trade-mark  or  place  of  busi- 
ness if  it  be  shown  that  the  plaintiffs  habitually  and  intentionally 
sold  short  \reight.° 

Trespass.' — Notwithstanding  the  abolition  by  the  Code  of 
this  technical  term,  it  will,  as  a  matter  of  convenience,  be  used 

i;SeM(?v.  P?'(?TC3eft(?(?,L.  R.,lCh.  App.  523;    Fetridge  v.   Wells,  4   Abb.    144; 

198 ;  Gandee  v.  Deere,  4  Am.  Law  Times  Partridge  v.  Menck,  1  How.  App.  Cas. 

State  Court  Rep.  2G7,  10  Am.  Law  Reg.  547,  5G1  •  but  see  Fetridge  v.  Merchant, 

N.  S.  694  ;  Town  v.  Stetson,  5  Abb.  N.  4  Abb.  156 ;  Curtis  v.  Bryan,  2  Daly, 

S.  218;    Foote   v.    Buchanan,  cited  3  312. 

Am.   Law  Rev.  781  ;  Faber  v.  Fuber,  ''  Sherwood  v.   Andrews,   5   Am.  L. 

B  Abb.  N.    S.  115  ;   Williams  v.  John-  Reg.  N.    S.  583 ;    Gorwin    v.  Daly,  7 

son,   2    Bosw.   1 ;  1  Bininger  v.    Wat-  Bosw.  222 ;    but  see  Edlesten  v.  Vick, 

ties    28    How.  200  ;    Newman    v.  Al-  11  Hare,  78. 

<Dord,  49  Barb.  591-2  ;   Gorwin  v.  Daly,  ^  Lee  v.  Haley,  L.  R.,  5  Ch.  App.  155. 

^    Bosw.   222 ;  Oillott    v.    Esterhrook,  ^  Upon  tlie   subject,  generally,   see 

47  Barb.  46  5.  Jacob's  Law  Diet.,  title  Trespass;  Add. 

^  Gandee  v.  Deere,  10  Am.  Law  Reg.  on   Torts,   Hill,   on   Torts,  3  Broom's 

N.  S.  694.  Com.  281,  3  Steph.  Com.,  6th  Eng.  ed., 

3  Stephens  v.  De  Gmto,  4  Abb.  N.  S.  523,  et  seq.,  id.  726,  id.  486  ;  1  Cliitty's  PI. 

47,  7  Rob.  343  ;    Leather    Gloth   Go.  v.  125,  et  seq.,  Williams's  Notes  to  Saund. 

Am.  Ijcather  Gloth   Go.,  11    House   of  Rep.,  eds.  of  1845  and  1871,  title  Tres- 

Lords  Cas.  523  ;  see  Edelstein  v.  Viek,  pass,  will  furnish  the  student  with  the 

11  Hare,  78  ;  see   also  Swift   Y.Dey,\  means  for  thorough  investigation  as  to 

Rob.  611.  this  action.  Cowen'.^  Treat.  (Kingsley'a 

■*  Amoskeag,  etc.  v.  Garner,  6  Abb.  ed.).  Wait's  Law  and  Pr.,  i5ouv  Inst., 

N.  S.  265,  55  Barb.  151.  Bouv.     Law     Diet.,     Burrill's     Prac, 

*  Quilhon  v.  Lindo,  9  Bosw.  605.  Graham's  Prac. ,  Tidd's  Prac,  Estee's 

*  Leather  Gloth  Go.  v.  Am.  Leather  PL  and  Prac,  3  Conw  Rob.  Prac,  4 
Cloth  Go.    11  Hou>-«e  of  Lords  Cases,  id..  Smith's  Man.  Com.  Law,  title  Torts. 


448  co.MPLAiiS'T  lisr  particular  cases.     [CH.  IV  a. 

herein.  Trespasses  are  of  two  kiuds  :  1,  Upon  real  estate  or  real 
jproperty ',  2.  Injuries  to  ^ersowa/ property.  The  first  is  defined 
to  be  an  entry  upon  another  man's  ground  without  a  lawful 
authority  or  the  doing  of  some  direct  damage,  however  inconsider- 
able, to  his  real  property.'  To  distinguish  it  from  trespass  to  his 
person  or  his  goods  it  is  technically  called  trespass  quare  clausiim 
fregit^  Under  the  old  practice  the  breaking  and  entry  of  the 
plaintiff's  close  was  the  gist  of  the  action,  and  all  injuries  there- 
after committed  mere  matters  in  aggravation  of  damages,^  and  if 
the  plaintiff  failed  to  prove  the  breaking  and  entry  the  action 
failed,  although  the  other  injuries  might  have  been  fully  proven.* 
The  rule  is,  perhaps,  more  liberal  since  the  Code  ^  as  to  what  will 
be  held  a  complaint  in  trespass  quare  clausum  after  a  trial  with- 
out objection,  but  a  good  practitioner  will  be  careful  that  no  such 
question  can  arise  upon  his  pleadings. 

The  distinction  between  trespass  quare  clausum  and  a  simple 
trespass  for  an  injury  to  personal  property  is  still  of  importance. 
For  instance,  as  before  shown,  the  owner  of  an  animal  is  liable 
for  any  injury  it  may  commit  while  trespassing  upon  the  lands 
of  another,  although,  he  have  no  knowledge  of  its  vicious  propen- 
sity;' and  if  diseased  sheep  trespass  upon  a  neighbor  of  their  owner 
he  may  recover  the  damages  to  his  sheep  if  he  sue  in  trespass 
quare  clausum  without  proof  of  scienter  ;  otherwise  if  he  do  not 
bi'ing  trespass  quare  clausuin^  So  a  judgment  for  the  defendant 
in  an  action  quare  clausum  freglt,  and  taking  a  piano  is  not  a 
bar  to  an  action  for  taking  the  piano.*  The  vendee  of  land,  under 
a  contract  for  a  deed,  has  suflicient  possession  to  maintain  this 
action  'against  his  assignee  of  the  contract,  who  wrongfully  cuts 

'  3  Broom's  Com.  281,  Broom's  Com.  30  How.  16,  37;  Dumont  v.  Smith,  4 

on  the  Com.  Law,  774.  Denio,  319. 

2  3  Steph.  Com.,  0th  Eng.  ed.,  533.  *  Phillips  v.  Do  Oroat,  2  Lans.  193 ; 

3  2  Greenl.  Ev.,  §  273  ;  Uoioe  v.  Wil-  Colton  v.  Jones,  7  Rob.  164. 

son,  1  Denio,  181 ;  V(tn  Leuven  v.  Lyke,        *  Van  Leuven  r.  Lyke,  1  N.  Y.  515,  4 

4  id.  127,  1  N.  Y.  515  ;  Hall  v.  Ilodskins,  Den.  127. 

30  How.  16,  27;  Uaight  v.  Badgclei/,        ''  Danckel  v.  Kocker,  11   Barb.  387, 

15  Barb.  499 ;  HougliUdinrj  v.  Hough-  389,  4  Conw.  Rob.  Prac.  589  ;  Barnum 

taling,  5  id.  379,  4  Conw.  Rob.  Prac.  v.    Van  Dman,    16   Conn.    200,   cited 

590  ;  Dumont  v.  Smith,  4  Denio,  319.  3     Pars.    Cont.,   5th    ed.,   223,    note  ; 

■*  Eames   v.  Prentice,  8  Cush.    337,  Cook    v.    Waring,    2    Harl.     &    Colt, 

overruling  Sampson  v.  Henry,  13  Pick.  331 ;  Fisher  v.   Clarke,  41  Barb.  320  ; 

36,  2  Greenl.  Ev.,  ^  273  ;  Howe  v.  Wil-  but  see  Mil's  v.  ^  Y.,  etc.,  2  Hob.  323, 

son,  1  Denio,  181 ;  Van,  Leuven  v.  Lyke,  41  N.  Y.  619,  if  allowed  to  go  at  large ; 

4  id.  127, 1  N.  Y.  515  ;  Hall  v.  Ilodskins,  see  i)ost,  title  "  Warrantv." 

8  Gilbert  v.  Tkompr,:)n',  9   Cu.4i.  348 


CII.  IV  A.]       COMPLAINT  IN   PARTICULAR   CASES.  449 

or  removes  timber  tlierefrom.'  The  owner  of  land  lias  a  right  to 
the  support  of  his  soil  in  its  natural  condition,  but  has  no  right 
to  require  support  for  it  with  a  superadded  structure."  One  may 
pull  down  his  own  house  without  shoring  or  propping  up  an 
adjoining  house  though  it  fall  for  want  of  the  support  it  before 
had/  if  the  work  of  excavation  be  properly  done,  for  it  is  the 
duty  of  the  adjoining  owner  to  shore  or  prop  up  his  own  building 
so  as  to  make  it  secure." 

The  riffht  of  the  owmer  of  land  to  the  lateral  support  of  his 
neighbor's  land  is  not  an  absolute  right,  and  the  infringement  of 
it  is  not  a  cause  of  action  without  appreciable  damage.  There- 
fore where  A  dug  a  well  near  B's  land,  which  sank  in  consequence, 
and  a  building  erected  on  it  within  twenty  years  fell,  and  it  was 
proved  that  if  the  building  had  not  been  on  B's  land  the  land 
would  still  have  sunk,  but  the  damage  to  B  would  have  been  inap- 
preciable, held  that  B  had  no  right  of  action  against  A.'  This 
right  of  support  is  not  in  the  nature  of  an  easement,  but  is  the 
ordinary  right  of  enjoyment  of  property,  and,  till  that  is  inter- 
fered with,  the  owner  has  no  cause  of  action,  although  something 
may  have  been  done  which  has  occasioned  results  that  will  after- 
ward affect  his  property  ;  so  that  if  one  dig  so  near  his  neighbor's 
land  that  it  fall  in,  and  more  than  six  yeai-s  afterward  his  neigh- 
bor's house  be  injured,  no  cause  of  action  accrues  until  such 
injury.*  One  who  sells  land  for  a  particular  purpose,  requiring 
more  than  ordinary  support,  cannot  dig  so  near  the  line  of  the 
land  so  sold  as  to  deprive  the  purchaser  of  the  support  required 
for  the  purpose  with  which  the  purchase  was  made.'  It  is  no 
ground  of  action  that  a  person,  by  stopping  up  on  his  own  land 
the  continuation  of  a  public  footway  over  his  neighbor's  land, 
causes  the  public  to  trespass  on  other  parts  of  his  neighbor's  land, 

1  PhiUips  V.  BeGratt,  2  Lans.  192.  25  N.  Y.  845  ;  Coster  v.  Mayor,  etc.,  43 

^  Raddiffv.  Mayor,  il^.Y. 19(3,201,  id.  413.                            ,     .„.        ,nn 

204 ;  Pauton  v.  Holland,  17  Johns.  92  ;  ^  Lamia  v.  Holhrooh,  4  Paige,  169  , 

Wvatt    V.   Harrison,   3   Barn.    &   Ad.  Paeyton\.  Mayor,9B.kG.{ll  ^ng.  (^. 

(23d   Eng.   C.   L.)   871 ;    Pa.rtridqe   v.  L.)  725  ;  Massey  v.   Oodyer,  4  C.  &  P. 

Scott,  3  Mees.  &  Welsb.  220;  Board,  (19  Eng  C.  L.)  101.        ,    ,    „    ,  ^  „ 

etc.,  V.  R.  R.  Co.,  L.  R..  3  C.  P.  G21, 625.  ,     «  Smith  v.   Thackerah,  L  R  ,  1  C  P. 

^  Radclif  V.  3ln/or,  4   N.  Y.   201;  Sni;  Benomi  v.  Backhouse,  9  11.  L.L^a. 

Peyton  V."  Mayor,  9   T^arn.  &  Cresa.  (17  503  ;  Farrand  v.  Marshal!,  19  Barb.  3b0. 

En'ff.  C.  L.)  725,  2  Wasli.  Real  Prop.  "  Backhouse  v.  Benonii,  9  II.  L.  cas. 

27H,2m.Sn()-^'d^;  Farrand v.MarsItaU,  503. 

21   Barb    409,  19  id.  880;    McKeon  v.  •>  Elliot  v.  ^orthmsccrn  Railway,  10 

Sec,  4  Rob.  467 ;  Austin  v.  Had.  R.  R.,  H.  L.  Cas.  333, 2  Wash.  Real  Prop.  288 

57 


450  COMPLAINT   IN   PARTICULAK   CASES.       [CIT.  TV  A. 

to  his  damage.'  If  A  wrongfully  enters  B's  close  and  leave  liis 
property,  B  may  er.ter  A's  and  return  it."  So  if  A  wrongfully 
enters  upon  B's  land  and  take  bis  goods,  B  may  lawfully  enter 
upon  A's  land  and  retake  them.'  Otherwise  if  one's  property  be  on 
another's  land  without  the  latter's  fault.*  So  A  may  enter  upon  B'  s 
land  and  stop  a  water-course  which  A  has  no  right  to  keep  open, 
though  such  stoppage  cause  damage  to  B.*  And  an  adjoining 
owner  may  enter  upon  his  neighbor's  land  to  make  or  repair  a 
division  fence.*  A  lessee  of  a  farm,  who  fixes  a  boundary  line 
between  himself  and  his  neighbor,  is  so  far  estopped  from  show- 
ino;  that  such  line  was  erroneouslv  settled  that  he  cannot  maintain 
ti'espass  against  his  neighbor  for  taking  and  carrying  away  the 
crops  upon  the  assumption  that  the  line  agreed  upon  between 
them  was  the  true  line.'  One  tenant  in  common  cannot  main- 
tain an  action  against  his  co-tenant,  or  one  who  enters  by  license 
from  him,  for  entering  upon  the  lands  owned  in  common.' 

One  who  goes  to  an  attorney's  office,  pursuant  to  request  by 
letter,  to  pay  a  note,  and  after  obtaining  possession  of  it  tears  it 
up,  is  not  liable  in  trespass  for  the  entry  /  "  although  he  would  be 
liable  in  tort  for  destroying  the  note,  and  might  even  be  liable  to 
a  criminal  prosecution  for  larceny/"  The  owner  of  real  estate, 
who  is  not  in  possession  thereof  i-n  law,  or  in  fact,  cannot  main- 
tain an  action  for  a  trespass  thereon,"  unless  the  premises  are  in 
possession  of  a  tenant-at-will ;'°  although  the  owner  may  maintain 
an  action  on  the  case  against  a  tenant  who  wrongfully  cuts  trees  " 
if  the  complaint  state  i\\e  facts  showing  he  is  a  reversioner.'*  So 
the  owner  may  maintain  the  action  after  he  becomes  possessed  of 
the  real  estate.''     To  maintain  trespass  for  an  entry  on  plaintitf  s 

'  Balf/rave  v.  Bristol,  etc.,  1  Hurl.  &       '"  People  v.  Gall,   1   Denio,  120;  but 

Norm.  369.  see  People  v.  Miller,  14  Johns.  371. 

"^Iteav.  8heimrd,2Meea.&  Welsb.       ^^  Frost   v.  Duncan,   19   Barb.   560; 

424.     See  3  Fost.  &  Finl.  203,  note.  Freer  v.  Stotenbur,  36  id.  643  ;   Bath- 

^Patrick    v.    Colerick,    3    Meea.    &  bon   v.   McConnell,  20  id.   311,   21    N. 

Welab.  483.    Hce  Spencer  v.  McGoweii,  Y.  466;  Phillips  v.  De  Groat,  2  Lais, 

13  Wend.  256;   3   Fost.  &  Finl.   202,  195  ;  Gardner  v.  Heart,  1  N.  Y.  528. 
note.  '-  PhilUps  V.  De  Groat,  2  Lant?.  195-6. 

*  Anthony  v.  Haney,^'Q'mg.{^l'Eng^.       ^'*  Sche7ner?iorn    v.    Buell,  4    Denio, 
C.  L.)  186.  •  422 ;    Vandnsen  v.  Young,  29  N.  Y.  30. 

^  Roberts  v.  Rose,  L.  R.,  1  Exch.  82;  '-i  Ealhhone  v.  McConnell,  20    Baib. 

Packer  v.  Rochpi^ter,  etc.,  17  N.  Y.  283.  311,  21  N.  Y.  466. 

*  Carpenter  v.  Ilalsey,  60  Barb.  45.  ""  Coioenhoven  v.  Brooklyn,  38  Barb. 
'  Dewey  v.  Burdwell,  9  Wend.  65.  9 ;  Hotchkiss  v.  Aubv,rn,  etc.,  36  id. 
8  Rnwson  v.  Morse,  4  Pick.  127.  600. 

*  Dumont  v.  Smith,  4  Denio,  319. 


(^T.   TV  A.  I       COMrLAINT   IN   PAKTICULAR   CASES.  451 

real  estate  lie  must  show  that  he  had  ai.  actual,  peaceable  posses- 
sion of  the  premises,  and  that  it  was  obtained  in  a  fair  and  legal 
manner.'  The  party  showing  the  oldest  possession  is  entitled  to 
recover  of  the  latest,  whether  the  property  be  real  or  personal." 
If  fruit  drop  from  one's  tree  on  to  another's  land  the  owner  may 
go  after  it  f  or  if  a  tree  accidentally  fall  upon  a  neighbor's  land."  If 
a  tree  grow  near  a  boundary  line,  so  that  its  roots  extend  on  each 
side,  it  is,  it  seems,  the  property  of  him  on  whose  land  the  trunk 
stands  ;  if  the  line  divide  the  trunk,  it  seems  it  belongs  to  both.* 
"Where  line  trees  are  destroyed  by  one  of  the  adjoining  proprie- 
tors, trespass  lies  by  the  otlier,  whether  his  interest  be  several  or 
as  tenant  in  common."  It  is  a  trespass  for  one  to  allow  water  to 
run  from  his  eaves  upon  his  neighbor's  premises  ^  although  he 
may  acquire  a  right  of  drip  by  an  user  for  twenty  years.* 

If  one  cut  timber  by  leave  of  the  owner  of  real  estate  after  the 
date  of  a  deed  thereof  but  before  the  deed  be  delivered,  he  is  not 
a  trespasser  for  removing  the  timber,  however  fraudulent  the 
object  of  the  grantor.  The  doctrine  of  relation  does  not  apply  to 
snch  a  case."  But  one  who  redeems  lands  sold  on  execution, 
after  receiving  the  sheriff's  deed,  can  maintain  an  action  in  the 
nature  of  waste,  or  an  action  on  the  case,  against  any  person  who, 
intermediate  the  sale  and  sheriff's  deed,  cuts  and  takes  timber 
from  the  premises ;  and  this  though  he  be  the  purchaser  on  the 
sheriff's  sale  and  cut  the  timber  with  the  consent  of  the  judgment 
debtor  who  was  in  possession.'"  Replevin  would  not,  however, 
lie."  But  a  mortgagee  in  possession  may  recover  in  waste  or 
trover  after  he  obtains  a  perfect  title  by  foreclosure."* 

The  owner  of  fixed  property  is,  in  general,  responsible  that  it 
be  so  used  tliat  another  shall  receive  no  injury  therefrom,  as  from 
throwing  objects  therefrom  '^  or  carelessly  firing  a  blast  which 

I  31  Penn.  St.  304.  Newman,  11  Ad.  &  Ell.  (39  Eng.  C.  L.) 

^  Kellogg  v.  Valentine,  21  How.  Prac.  40. 
230  ;  Broton  v,  Peahody,  3   Abb.   211,        «  j^^^le  v.  Sealey,  47  Barb.  314. 
13  M.  Y.  121.  »  Pratt  v.  Potter,  21  Barb.  589 ;  Tahor 

'^  Anthony  v.  Haney,  8  Bing.  (21  Eng.  v.  Robinson,  36  id.  483. 
C.  L.)  192 ;  Hoffman  v.  Armstrong,  46       "*  Thomas  v.  Crofat,  14  N.  Y.  475 ; 

Barb.  337.  Rich  v.  Baker,  3  Denio,  79. 

*  Sheldon  v.  Sherman,  42  Barb.  371.       '^  Rich  v.  Baker, '6  Demn,  79;  Thomas 

°  nnhois  V.  Weaver,  25  N.  Y.  123.  v.  Crofiit,  14  N.  Y.  475. 

8  Dubois  V.  Weaver,  25  N.  Y.  123.  '^  Zaflin  v.  Griffiths,  35  Barb.  r>S. 

'  /Jellows    V.   Sackett,   15   Barb.  96;       ^■^  Althorfe  v.    Wolf,  22   N.  \.  355. 

McKcon  V.  See,,  4  Rob.  467  ;  Tucker  v.  Corrigan  v.  Union,  etc.,  98  Mass.  577 


453  COMPLAIN^T  1^   PAETICULAE   CASTAS.       iGK.  IV  A. 

throws  rocks  tlierefrom '  upon  one  who  is  passing  npon  a  path- 
way thereon."  Trespass  may  be  maintained  by  the  owner  of  a 
pew  in  a  church  against  one  who  disturbs  him  in  its  possession.' 
One  is  not  liable  for  temporarily  obstructing  a  street  with 
materials  while  building."  It  has  been  held,  at  nisi  prius,  that  if 
one  nail  a  board  to  his  own  wall  so  as  to  overhang  his  neighbor's 
premises,  trespass  does  not  lie  for  the  injury,^  but  we  doubt  the 
soundness  of  the  case.' 

Tlie  term  "  trespass,"  when  applied  to  injuries  to  personal 
property,  has  been  defined  to  be  a  direct  injury,  one  caused 
by  immediate  force  or  violence,  actual  or  implied,  to  personal 
property.'  As  if  one  throw  a  log  of  wood  into  a  highway,  and 
by  the  act  of  throwing  another  person  is  injured,  the  remedy 
under  such  circumstances  is  tres])ass.  But  if  the  log  reaches  the 
ground,  and  remains  there,  and  a  person  falls  over  it  and  is 
injured,  the  remedy  is  case,  as  the  injury  is  not  immediately  con- 
sequent on  the  act  done.*  In  general  a  slight  interference  with 
the  property  of  another,  as  by  signing  an  indemnity  bond,  renders 
a  party  liable  '^  but  an  execution  creditor  does  not,  by  becoming  a 
party  to  an  interpleader  suit,  ratify  or  adopt  the  act  of  the  sheriff, 
so  as  to  render  himself  liable  in  trespass  for  the  seizure  of  the 
goods  which  are  the  subject  of  the  interpleader,'"  although  the 
property  be  sold  under  an  interpleader  order ;"  nor  is  a  purchaser 
under  an  execution  liable  unless  he  remove  or  interfere  with  the 
property  purchased  ;"*  nor  a  sheriff  for  merely  requiring  a  certificate 
of  indebtedness."  So  an  attorney  who  issues  an  execution  is  not 
liable  for  a  sale  of  goods  under  it  by  the  sheriff,'*  unless  he  direct  the 
sheriff  upon  what  to  levy  or  actively  interfere.'^   It  has  been  held  in 

iZlmcoWv.  2V^(3?oa?'A;,e«c.,  37  N.T.  637.  Herring  -v.  Eoppock,   15  N.  Y.    409; 

'^ I)risaolly.Neionr]c,etc.,%ll^.Y.Q'il ;  Pozzoni  y.  Henderson,  2  E.  D.  Smith, 

Martin,  v.  Houghton,  1  Abb.  N.  S.  339.  146  ;  Ball  v.  Loomis,  29  N.  Y.  417. 

»  Shaw  V.  Beveridf/e,  3  Hill,  36.  "  Woollen  v.  Wright,  1  Hurl.  &  Colt. 

*  People    V.   Caniiingham;   1   Denio,  554. 

524 ;  see,  also,  32  Penn.  St.  68-9.  "  Walker  v.  Olding,  1  Hurl.  &  Colt.  621. 

6  Pickering  v.  Rudd,  4  Camp.  219,       '^  33  ^enn.  St.  517. 
220,  3  Camp.  Lives  of  Ch.  Just.  169.  ^^Wood  v.  Orser,  25  N.  Y.  318. 

« Pinchin  v.  London,  etc.,  1  Kay  &       »^  Ford  v.    Williams,  13  N.  Y.  577  ; 

Johns.  34  ;    HawtTwrn  v.   Leland',  43  Davies  v.  Jenkins,  3  N.  Y.  Le<?.  Obs.  38, 

N.  Y.  547.  11   Mees.  &  Welsh.  745 ;    Ghilders   v. 

'  Broom's  Com.  on  the  Cora.  Law,  125,  Wooller,  2  Ellis  &  Ellis  (105  Eng.  C.  L.) 

683,1  Chit.  PI.  125, ««  seq.,  Steph.  PI.  16.  287. 

*  Broom's  Com.  on  tlie  Com.  Law,  ^^  Ford  v.  Williams,  24  N.  Y.  359; 
125,  1  Chit.  PI.  135,  et  seq.,  133,  et  seq.  Rotcles  v.  Senior,  4  N.  Y.  Leg.  Oha.  374. 

»  Daoia    v.    Ncwkirk.    5    Den.    92 ;    8  Q.  B.  (55  E.  C.  L.)  677. 


CH,  IV  A.]       COMPLAINT   IN   PARTICULAR   CASES.  453 

England  that  a  party  wlio  directs  a  suit  to  be  brought  against  A, 
junior,  without  further  direction,  is  liable  if  a  suit  be  brought 
against  A,  senior,  and  his  property  sold.'  The  rule  is  otherwise, 
however,  in  New  York,"  unless  the  party  knowingly  sets  a  void 
process  in  motion,*  or  causes  an  execution  to  be  issued  upon  a 
paid  judgment.*  So  it  has  been  held  that  the  plaintiff  in  an 
execution  is  not  liable  for  directions  given  by  his  attorney  without 
proof  that  he  authorized  or  approved  of  them  after  given  f  nor 
IS  an  officer  who  issues  process  liable  for  its  execution  after  the 
return  day  even  though  it  be  irregular  and  void.' 

"Where  process  is  set  aside  as  irregular,  the  party  suing  it  out  is 
liable  for  its  execution ;  otherwise  if  the  judgment  be  reversed 
on  appeal.''  The  slightest  intermeddling  with  the  property  of 
another,  to  his  exclusion,  is  usually  sufficient  to  render  the  inter- 
meddler  liable,  although  there  be  no  manual  interference  w^ith  the 
property  or  actual  change  of  possession.*  Where  the  plaintiff", 
the  bailee  of  a  wagon  for  a  year,  let  it  to  the  defendant,  and  it 
was  used  by  H.  and  brought  back  broken,  when  plaintiff"  sent  it  to 
a  shop  for  repairs,  defendant  and  H.  took  it  to  another  shop,  had  it 
repaired  and  returned  it  to  plaintiff",  held,  the  bailment  to  defendant 
continued  until  the  wagon  was  repaired  and  returned,  and  he 
was  not  liable  for  wrongfully  taking  the  wagon  from  the  shop.' 
Although  a  constable  having  an  attachment  against  the  owner  of 
property  levied  upon  by  a  sheriff  may  levy  his  attachment  upon 
the  same  property,  yet  he  is  liable,  in  trespass,  to  the  sheriff  for 
taking  the  property  from  his  possession  '"  Where  an  act  is  done 
pursuant  to  one's  direction,  he  cannot  sIk.-.v  it  would  have  been 
done  without  such  direction."     A  thief  may  maintain  an  action 

1  Jermain  v.  Hooper,  6  Man.  &  Gr.     8  Barb.  213;  Goiinah  v.  IIah,m  Wend. 
(4G  YA\ix,.  C.  L.)  837.  403 ;  Boyce  v.  Brockway,  31  N.  Y.  493  ; 

2  Avcrill  V.  Williams^,  1  Den.  501.  Boiid  v.  Willett,  1  Kevea,  380;  Fonda 
8  Kerr  v.  Mount,  28  N.  Y.  659.  v.  Van  Rome,  15  Wend.  631 ;  (U/ple^/ 
'*  Leicis   V.   Palmer,  6    Wend.   307;     v.  i^rAse,  2  N.  Y.  115  ;  Gibbs  v.  Gliaxe,  10 

Brown   v.  Feetor,  7  id.    301 ;   Wivier  Mass.  125 ;  Miller  v.  BaJcer,  1  Met.  27 ; 

V.  Btdkley,  15  id.  331 ;  McGuinty  v.  Her-  Greene  v.  Kennedy,  40  Barb,  18  ;  Gan- 

Hck,  5  id.  240.  tine  v.   Glarke,   4i  id.   629  ;    Goats  v. 

»  Averill  v.  Willinm>i,  4  Den.  295.  Darbi/,  2  N.  Y.  517. 

«  Van  Rensselaer  v.  Kidd,  0  N.  Y.  331.        »  Eldridge  v.  Adams,  54  Barb.  417. 

•i  Kissoek    v.    Grant,    34  Barb.  149 ;       '»  Benson  v.  Berry,  55  Barb.  620. 
Simpson  v.  Hornbeck,  3  Lans.  53.  i'  Goats  v.  Darby,  2  N.  Y.  517,over- 

•*  2  Greenl.    Ev.,  g  621  ;    Wintrinq-  raling  Berrick   v.    ffanley,   1    Caines, 

ham  V.  Lefoy,  7  Cow.  735  ;  Judson  V.  253.  '  See  Kidzie  v.  Sackrider,  14  Johns, 

Gook,  11  Barb.  643  ;  Farrar  v.  Ghauffe-  195. 
tete,  5  Denio,  .537 ;  Neff  v.  Thompson, 


454  COMPLAINT  IN   PARTICULAR   CASES.       [CH.  1\  A. 

of  trespass  against  a  mere  wrong-doer.'  So  a  widow  may  maiii- 
tain  trespass  for  a  calf  owned  bj  her  husband,  against  any  one 
but  his  personal  representative.*  The  owner  of  cattle,  who  leaves 
them  in  possession  of  an  agister,  is  liable  in  trespass  for  any  injury 
they  may  commit.^  One  who  drives  tresj^assing  cattle  into  the  high- 
way, without  injuring  them,  is  not  liable  for  any  injury  they  may 
subsequently  sustain,  without  his  fault,*  unless  they  come  upon 
his  premises  by  reason  of  his  own  defective  fence. ^  In  such  case 
he  should  drive  them  back  upon  the  premises  of  their  owner,  for 
it  is  in  consequence  of  his  own  fault  that  they  are  there.^  So  a 
bailee  without  hire  is  not  bound  to  keep  articles  deposited  with 
him  after  he  has  offered  to  deliver  them  and  made  an  actual  tender 
to  the  owner ;  and  if,  upon  tender  thereof,  the  owner  refuse  to 
take  them  away,  the  bailee  may  lawfully  place  them  off  from  his 
premises  without  responsibility  for  their  subsequent  loss.*  One 
who  merely  sets  a  dog  on  sheep,  to  drive  them  from  his  premises, 
is  not  liable  if  he  call  off  the  dog  immediately  after  the  sheep 
leave  the  premises.'  One  who  purchases  premises,  on  the  fore- 
closure of  a  mortgage,  acquires  title  to  the  crops,  and  may  main- 
tain trespass  against  one  who  cuts  and  removes  them.*  So  crops 
go  to  a  devisee,  unless  required  to  pay  debts,'  unless  the  crops 
be  specifically  excepted  on  the  sale." 

An  officer  who  severs  the  guard  of  a  watch,  and  levies  upon  it, 
is  liable,  although  the  watch  be  handed  to  him  to  look  at,  if  tlie 
guard  be  still  around  the  ow^ner's  neck."  If  a  party  in  possession 
of  another's  wagon  take  off  part  of  its  appendages  —  as  the  whiffie- 
trees  —  and  substitutes  others  belonging  to  himself,  and  the  owner 
repossesses  himself  of  the  wagon  without  knowledge  of  the  change, 
trespass  cannot  be  maintained  against  him  for  the  substituted 
articles ;  the  only  action,  if  any,  which  lies  against  him  is  trover 
after  a  demand  and  refusal."     If  the  owner  of  property  forbid  its 

'  Ward  y.  People,  QUiU.lM;  People        ^  Ronlsion  v.   McClelland,  3  E.   D 

V.  Bennett,  37  N.  Y.  131.  Smith,  60. 

"^  Brighnm  v.  BusJt.,  33  Barb.  506.  '  1  Hilliard  on  Torts,  1st  ed.,  144. 

3  Stnford  v.   Ingersol,   3    Hill,    38  ;        "  Jeioett  v.  Keenholts,  16  Barb.  193. 
Sheridan  v.  Bean,  8  Met.  284;  contra,        »  Bradner  v.  Falkner,  34  N.  Y.  347. 
31  Penn.  St.  535.  '"  Sherman  v.  Willett,  43  N.  Y.  146. 

*  33  Penn.  St.  (8  Casey)  65  ;  Stevens       "  Mack  v.  Parks,  8  Gray,  517. 
V.  Ciirtin,  18  Pick.  237.  '^  Parker  v.  Walrod,  13  Wend.  297 

"  Carruthers  v.  BoUu,  8  Ad.  &  Ell.  16  id  514. 
(35  Eur.  C.  L.)113. 


CM.   IV  A.J       COMrLAIlS"T   IN    PARTICULAR   CASES.,  4;ja 

sale  he  does  not  waive  his  right  of  action  by  afterward  purchaelng 
at  tlie  sale  ; '  nor  by  receiving  the  surplus  on  an  illegal  sale.' 

But  after  the  owner  sues  and  recovers  damages  for  an  illegal 
sale  he  cannot  maintain  an  action  for  the  surplus.'  One  who  sells 
property  received  on  a  void  contract  after  he  has  repudiated  or 
rescinded  it  is  liable  in  trespass."  If  A  have  B's  goods  which  he 
is  bound  to  deliver  on  demand,  and  he  deliver  them  to  C  without 
the  owner's  authority,  he  is  responsible  for  the  refusal  of  such 
holder  to  deliver  them  to  the  owner  thereof.-  A  carrier  is  not 
liable  in  trespass  without  proof  of  a  conversion  ;  a  negligent  loss 
or  failure  to  deliver  is  not  sufficient." 

Even  if  one  be  a  trespasser,  as,  for  instance,  if  he  wrongfully 
tie  a  rope  which  supports  a  platform  to  another's  chinmey,  the 
party  against  whom  the  trespass  is  committed  has  no  right  to 
recklessly  expose  him  to  injury,  as  by  unloosening  the  rope.' 
One  who  builds  a  high  fence  upon  his  own  land  so  as  to  exckide 
the  light  from  his  neighbor's  house  is  not  liable  for  so  doing 
though  his  motives  be  bad.* 

l^rover."  —  This  action  was  originally  brought  for  the  recovery 
of  damages  against  one  who  had  found  goods,  and  who  had 
refused  to  deliver  them  on  demand  to  the  rightful  owner  but  con- 
verted them  to  his  own  use.  From  this  fiction  of  a  loss  and 
finding  of  the  goods  (all  trace  of  which  is  lost  under  the  existing 
procedure)  the  remedy  derived  its  name.  Lord  Mansfield,  Chief 
Justice,  described  this  action^"  as  being  in  form  a  fiction  ;  in  s>jh- 
stance  a  remedy  to  reco^'er  the  value  of  personal  chattels  wrong- 
fully converted  by  a  23arty  to  his  own  use.  It  is  an  action  of  tort, 
and  the  whole  tort  consists  in  the  wrongful  conver^^ion.  Two 
things  are  necessary  to  be  proved  to  entitle  the  plaintilf  to  recover 
in  this  kind  of  action:  first,  property  in  the  plaintili';  and  secondly, 

'  Ford  V.  Williams,  24  N.  Y.  359.  '  Upon   the  subject,  generally,   see 

^  Brown    v.    Feetor,  7    Wend.   301 ;  Broom's   Com.  ou  the  Common  Law, 

7/ood  V.  Jackson,  8   id.  10;  Burn  v.  4thed.,136,  498-9, 804,  <^^se(7.,  3  Broom's 

Morris,  2  Cromp.  &  Mees.  579.  Com.  256,  324,  3  Steph.  Com.,  0th  ed., 

«  Gtar/c  V.  Ilallock,  16  Wend.  607.  486,  550,   Cow.     Tr.,    Kingsley's    ed., 

*  Good  V.  Curtiss,  31  How.  4.  Wait's  Lawand  Pr.,  Bouv.  Inst.,  Bouv. 

=  Dunham   v.    Tro^/,  etc.,  3    Trans.  Law    Diet.,   Tidd's   Pr.,  Burrill's  Pr., 

App.  67,  ;')  Keyes,  54;].  Graham's  Pr.,  Estee's  PI.  and  Pr.,  Wil- 

"  Tolaitd  V.  National,  etc.,  4  Abb.  N.  liam.s's  notes  to  Saund.  eds.  of  1846  and 

S.  316.  1871,  1  Chitty's  PI.,  Steph.  PI.  18,   19 

'  P/nUips  V.  Wilpers,  2  Lans.  390.  40,  3   Conw.   Rob.    Pr.,  4  id.,  Smith's. 

^  Pickard  v.   Collins,  23    Barb.  445;  Man.  Com.  Law,  title  "  Torts." 

McKeon  v.  See,  4  Rob.  467.  »»  Cooper  v.  Chitty,  1  Burr.  31. 


456  COMPLAINT  IN   PARTICULAK   CASES.       [CII.  IV  A. 

a  wrongful  conversion  by  the  defendant.  This  form  of  action 
then  i3  adopted  to  try  the  title  to  personalty,  though  it  does  not 
lie  for  chattels  annexed  to  the  freehold  ;  it  is,  in  some  respects, 
analagous  to  trespass  for  goods  taken  and  carried  away  ;  tlie 
latter,  however,  is  founded  on  possession,  actual  or  constructive, 
while  trover  is  founded  on  a  right  of  jprojperty  coupled  with  a 
right  of  possession.  Force  does  not  enter  as  an  ingredient  into 
the  constitution  of  a  right  of  action  in  trover.'  A  conversion 
may  be  evidenced  by  a  wrongful  taking  of  the  goods  of  him  who 
has  a  right  to  the  immediate  possession  of  them,  when  no  formal 
demand  of  the  goods  and  refusal  to  deliver  them  need  be  shown  in 
order  to  support  an  action  for  their  recovery.  A  demand  and 
refusal  are  necessary  in  all  cases  where  the  defendant  in  the  first 
instance  became  lawfully  ])ossessed  of  the  goods,  and  the  plaintiff 
is  not  prepared  to  prove  some  distinct,  actual  conversion  of 
them.*  We  have  thus  given  a  somewhat  extended  statement  of 
the  action  before  the  Code,  because  although  the/brm  is  abolished 
the  cases  where  an  action  for  the  same  purpose  may  be  sus- 
tained are  the  same  as  under  the  former  practice.  A  and  B 
verbally  treated  for  the  purchase  of  a  horse  by  the  foriuer 
from  the  latter.  A  few  days  after  B  wrote  to  A  saying  that  he 
was  informed  there  was  a  misunderstanding  as  to  the  price,  A 
having  imagined  he  had  bought  the  horse  for  thirty  pounds,  B 
that  he  had  sold  it  for  thirty  guineas.  A  thereupon  wrote  B, 
proposing  to  split  the  difference,  adding,  "  If  I  hear  no  more  about 
him  I  consider  the  horse  is  mine  at  thirty  pounds  fifteen  shillings." 
No  money  was  paid  and  the  horse  remained  in  B's  possession  ;  six 
weeks  afterward  the  defendant,  an  auctioneer,  who  was  employed 
by  B  to  sell  his  farming  stock,  and  who  had  been  directed  by  B 
to  reserve  the  horse  in  question,  as  it  had  already  been  sold,  by 
mistake  put  it  up  with  the  rest  and  sold  it.  After  the  sale  B. 
wrote  to  xV  a  letter  which  substantially  amounted  to  an  acknowl- 
edgment that  the  horse  had  been  sold  to  him.  Held,  that  A 
could  not  maintain  an  action  against  the  auctioneer  for  a  conver- 
sion of  the  horse,  he  having  no  property  in  it  at  the  time  the 
defendant  sold  it,  B's  subsequent  letter  not  having  (as  between  A 

'  Broom's  Cora,  on  the  Common  Law,    801-9,  as  to  when  a  demand   is  necew- 
4th  ed.,  130-7.  sary  see  ante,  the  present  chapter,  titles 

*  Broom's  Com.  on  the  Common  Law,      '  Conversion  "  and  "  Demand." 


CH.   IV  A.]       COMPLAINT   IN   PARTICULAR  CASES.  457 

and  a  stranger)  any  relation  back  to  A's  proposal.'  Upon  ai 
agreement  to  sell  property  when  the  purchase-money  shall  he 
paid,  the  title  in  the  mean  time  to  remain  in  the  vendors,  the 
purchaser  takes  no  title  whatever,  but  merely  a  right  to  acquire 
it  in  future,  aud  if  he,  without  having  paid  the  purchase-money, 
sell  and  deliver  the  property  to  a  third  person,  the  latter, 
although  he  buy  in  good  taith  and  without  notice  of  the  original 
claim  of  the  vendors,  cannot  hold  the  property  as  against  them. 
Possession  alone  is  not  sutScient  to  enable  the  person  having  it 
to  transfer  the  title  to  personal  property  by  a  sale  even  to  a  hona 
fide  purchaser.''  An  action  lies  for  the  conversion  of  money 
belonging  to  the  plaintiff,  and  it  may  be  sustained  without  prov- 
ing the  specific  description  of  the  bills  or  coin  converted.^  So 
for  a  chose  in  action  which  was  pledged  and  converted  by  the 
pledgee,^  but  an  offer  to  pay  the  amount  borrowed  must  be 
made  on  the  day  when  it  fell  due;^  otherwise  in  an  action  to 
redeem.^  But  if  one  be  authorized  by  the  holder  of  a  bill  of 
exchange  to  get  it  discounted  and  to  apply  the  proceeds  in  a 
particular  way,  does  get  it  discounted  but  misapplies  a  part  of 
the  proceeds,  he  cannot  be  sued  in  trover  for  the  bill,"  although 
the  action  would  have  lain  for  the  proceeds.''  An  action  of  trover 
will  not  lie  for  the  omission  of  a  common  carrier  to  deliver  prop- 
erty, as  where  the  property  has  been  lost  or  stolen  through  negli- 
gence, and  so  not  delivered  to  the  owner.  The  remedy  is 
assumpsit  or  a  special  action  on  the  case.*  One  in  whose  name 
business  is  carried  on  by  another  to  avoid  his  creditors  has  the 
legal  title  to  property  intrusted  to  him,  by  third  persons,  or  its 
proceeds  in  the  course  of  such  business,  notwithstanding  any 
gecret  agreement  by  him,  with  the  person  for  whom  he  conducts 
Buch  business,  that  he  sliall  be  only  his  clerk  ;  and  he  may  main- 

1  Felthouse  v.  Brindley,  11  C.  B.  N.  ■»  Lucky  v.  Oannon,  37  How.  134,  6 

S.  (103  Eng.  C.  L.)  869.  Abb.  N.  fe.  209. 

«  Ballard  v.  Burgett,  47  Barb.  646,40  »  ^„^^y  y  Burnett,  6  Abb.  N.  S.  303  ; 

N.  Y.  314;  contra,  Vincent  v.  Cornell,  see  Hardy  y.  Peyton  1  Rob.  20 1,  modi 

13  Pick.  294.     The  case  of  Mcmil  v.  fied,  41  N.  Y.  619. 

*Tfnth  Nat.  Bank,  55  Barb.  59,  was  re-  ^  Palmer  v.  Jarinain,  2  Mees.  &.VVelfi. 

versed  upon  the   main   point   by  the  282;  Stierneld  v.  nolden,A'Q.  k  QtAW 

court  of  appeals,  in  November,  1871 ;  Eng.  C.  L.)5;  Walter  v.  Bennett,  IG  N. 

46  N.  Y.  325.  Y.  252. 

^  Gordon  v.  Hoxtetter,  4  Abb.  N.  S.  '  Clark  v.  Ulerrhavtn'  llfUik,  1  Saiuif. 

263,  37  N.  Y.  99  ;  Donohue  v.  Ih:,ry,  4  498  ;  Matter  of  Pie,  10  Abb.  410. 

E  D.  Smith,  162;  Graces  v.  Dudley,  20  *  Tolavo  v.   National,  etc.'dii  How 

N.  Y.  76.  496,  t  Abb.  N.  S.  310. 
50 


458  COMPLAINT   IN   PARTICULAE   CASES.       [CH.  IV  A. 

tain  an  action  to  I'ecover  from  them  any  thing  converted  by  thera 
to  their  own  use  against  his  will.'  A  having  lost  a  £20  bank 
note,  it  was  found  by  B,  who  took  it  to  C  to  get  it  changed, 
telling  him  she  had  found  it.  C  changed  it,  charging  her  two 
sovereigns  for  doing  so.  B  afterward,  on  being  taken  up  on  a 
charge  of  stealing  the  note,  gave  A  £7  as  part  of  the  change.  In 
an  action  of  trover  brought  by  A  against  C  to  recover  the  value 
of  the  note,  held,  that  the  action  was  maintainable,  and  that  the 
acceptance  of  part  did  not  affirm  the  act  of  B  or  waive  the  tort, 
but  that  it  only  went  in  diminution  of  the  damages,  the  court 
saying :  "  It  cannot  be  supposed  for  a  moment  that  the  plaintiff 
intended  to  confirm  the  act  of  the  defendant  or  to  waive  the  tort. 
I  think  the  receiving  of  the  seven  pounds,  under  these  circum- 
stances, does  not  ratify  the  act  of  the  party  in  converting  the  note, 
and  was  not  intended  to  ratify  it.  It  only  goes  in  diminution  of 
the  damages."  *  If  one  purchase  from  a  trespasser  or  thief  trover 
will  lie,  after  demand,  for  the  property  purchased,  but  not  without 
a  demand.'*  No  demand  is  necessary  if  goods  be  taken  by 
trespass  from  a  trespasser.^  This  action  cannot  be  maintained 
against  one  who  has  not  been  guilty  of  a  conversion,  who  has 
never  had  possession  of  the  property,  and  has  had  nothing  to  do 
with  it  except  to  take  a  mortgage  ujjon  it  to  secure  a  debt  from 
one  claiming  to  be  the  owner.* 

The  action  lies  notwithstanding  the  goods  have  been  returned ; 
the  return  goes  to  the  question  of  damages  but  not  to  the  right  of 
action  ;^  when  an  action  has  accrued,  it  can  only  be  discharged  by  a 
satisfaction  ;°  but  if  the  owner  merely  open  the  boxes  and  take  an 
inventory  of  the  goods  it  is  not  such  a  resumption  of  the  property 
as  will  go  in  mitigation  of  damages.'  An  auctioneer,  who  inno- 
cently sells  goods,  is  liable  to  the  owner  in  trover.*  Trover  lies 
for  securities  pledged  on  an  usurious  loan.'  A  bailee  is  bound  to 
return  the  pro})erty  bailed  to  the  bailor  at  his  peril.     Where  one 

'  Paddon  v.  Williams,  1  Rob.  340.  v.  Perkins,  11    How.  17 ;   Hibbara  v. 

^  Barn  v.  Morris,  2  Croinp.  &  Mees.  Stewart,  1  Hiltou,  207. 

579,  4  Tvrwh.  485  ;  Brown  v.  Fceter,  7  «  McKnirjht  v.  Dnnlop,  5  N.  Y.  537 

Wend.  ;J01 ;  Wood  v.  Jackson,  8  id.  10.  '  fjonnah  v.  Hale,  23  Wend.  402. 

2  Barrett  v.  Warren,  3  Hill,  348.  «  Cole  v.  Clark,  3  Cusli.  399  ;  Dudley 

*  Mattiwean,  etc.,  y.Be?itley,  I'd  Barh.  v.    Jlo.wley,  40   Barb.   397;    Moore   v. 

641.  EJilrrd,  42  Vt.  13  ;  Fowler  v.  Ilollins,  3 

»  Murray  v.  Burling,  10  Jolma.  176 ;     En.?.  Rep. ,  L.  R.,  7  Q.  B.  610. 

Reynolds  v.  Shuler,  5  Cow.  323  ;  Savage  *  Schroeppel  v.  Corning,  6  N.  Y.  107  ; 

5  Den.  236. 


CII.  IV  A.]       COMPLAINT   IN   PAHTTCULAR   CASES.  4^9 

loaned  another  a  carriage,  stored  at  a  particular  place,  it  was  held 
to  he  the  duty  of  the  bailee  to  return  it  to  tlie  bailor,  and  that 
returning  it  to  the  place  from  which  he  obtained  it  was  a  conver- 
sion ;'  although  if  the  property  bailed  remain  in  the  hands  of  the 
bailee  trover  cannot  be  maintained  against  him  without  demand  of 
the  property  and  refusal  to  return  it,  yet  if  the  bailee  deliver  it 
to  another  such  delivery  is  of  itself  a  conversion,  and  proof  of 
demand  and  refusal  are  not  necessary.'  If  one  fraudulently 
induce  another  to  sell  him  goods  trover  lies  therefor  without  a 
demand,^  although  if  the  vendor  receive  any  thing  upon  such  a 
purchase  he  cannot  maintain  the  action  without  tendering  back 
what  he  so  received,^  unless  it  be  the  obligation  of  the  vendee 
which  he  may  surrender  on  the  trial/  Such  rescission  should  be 
promptly  made  on  discovery  of  the  fraud/  It  is  frequently  a 
question  of  importance  whether  the  plaintiff  should  waive  the 
tort,  and  sound  his  action  upon  contract.  Thus  an  infant  is  liable 
in  tort  though  not  upon  contract,  and  where  a  complaint  set  forth  an 
agreement  between  the  parties  by  which  the  defendant  promised 
to  take  and  sell  certain  goods  belonging  to  the  plaintiff,  at  certain 
stipulated  prices,  and  should  receive  for  his  services  all  he  should 
realize  upon  the  sale  over  and  above  such  prices,  and  should 
return  to  the  plaintiff  the  goods  which  he  might  not  be  able  to 
Sell  in  good  order  ;  that  plaintiff  had  demanded  of  defendant  that 
he  return  the  goods  or  account  for  the  avails,  pursuant  to  the 
agreement,  and  alleged  that  the  defendant  had  neglected  and 
refused  to  account  therefor,  and  had  not  returned  the  goods,  it 
was  held  that  the  action  was  upon  contract,  and  that  a  finding  that 
defendant  had  not  returned  the  goods  was  not  one  that  he  had 
refused  so  to  do  or  converted  them  to  his  own  use.  It  was  therefore 
held  that  infancy  was  a  good  dufense.'  Where  the  cause  of  action 
really  sounds  in  contract  the  plaintiff  cannot,  however,  turn  it 
mto  a  tort  for  the  purpose  of  ciiarging  an  infant,'  An  infant  who 
hires  a  horse  to  drive  to  a  certain  place,  and  drives  him  to  another 

'  Enmay  v.  Fanning,  9  Barb.  176,  5  ^  Central  Bank  v.  Finder,  46  Barb. 

How.  228.  469  ;  Bruce  v.  Davenport,  3  Ko/eo,  473, 

■■*  tichrop.ppel  V.  Corning,  5  Den.  2o6 ;  5  Abb.  N.  S.  185. 

Cari/  V.  IlotaUng,  1  Hill,'311.  «  Munger  v.  IIess,2S  Barb.  75. 

3  Central    Bank  v.  Finder,  46  Bai-b.  '  RohUns   v.    Mount,   83   How.  33,  4 

467  ;  Ely  v.  Mumford,  47  id.  682.  Rob.  553. 

^  Central  Bank  v.  Finder,  46  Barb. 
469 


460  COMPLAINT  IN  PARTICULAK   CASES.       [Cfl.  IV  A 

is  guilty  of  a  conversion  and  liable  in  trover.'  If  personal  prop- 
erty be  loaned  to  another  and  he  affix  it  to  his  real  estate  and  sell 
that,  the  purchaser  is  not  liable,"  provided  that  the  chattels  be  so 
affixed  that  they  are  essential  to  the  support  of  a  house  or  other 
party  of  the  realty  f  otherwise  if  they  can  be  easily  separated  from 
the  realty  without  subjecting  it  to  destruction  or  serious  injury.* 
A  party  who  sells  the  property  of  another  as  agent  for  one  who 
brings  it  to  him  for  that  purpose  is  liable,  however  innocent  his 
motives,'  for  it  is  the  legality  or  illegality  of  the  act,  and  not  the 
good  or  bad  motive  of  the  doer,  which  renders  him  liable."  One 
who  replevies  projierty  is  liable,  after  verdict  against  him,  to  this 
action  for  the  property  replevied.'  Where  one  obtained  a  watch 
under  an  offer  by  the  owner  to  deliver  it  as  security  for  a  loan 
and  refused  to  return  it  or  make  the  loan,  it  was  held  the  owner 
could  sell  the  watch,  and  the  purchaser  could  maintain  trover 
for  the  conversion  *  on  demand  after  such  jpuvchase*  Trover 
W'ill  lie  to  recover  the  value  of  coal  dug  by  mistake  by  the 
owner  of  land,  through  a  mistake  of  boundaries,  out  of  adjoin- 
ing land ;  the  damages  in  case  of  such  innocent  mistake  are  the 
value  of  the  coal  in  the  mine  and  not  after  it  is  mined.'"  But  if 
property  be  knowingly  converted  by  a  wrong-doer  he  is  liable  for 
its  value  in  any  condition  to  which  he  may  change  it."  Where 
the  seller  gave  the  buyer  an  order  upon  his  whariinger  for  twenty 
sacks  of  flour,  and  the  whariinger,  as  found  by  the  jury,  accepted 
it  and  delivered  five  sacks,  saying  it  was  all  he  then  had,  but 
would  deliver  the  balance  as  soon  as  he  got  any.  A  demand  was 
subsequently  made  on  the  wharfinger  for  the  fifteen  barrels,  but 
he  refused  to  deliver  them,  saying,  he  had  none  of  the  seller's 

■  F'lRh  V.  Ferris.  5  Duer,  49;  Morton  Collins,  28  Barb.  444  ;  Aithurn,  etc.  v. 
V.  GloHter,  40  Maine,  o20.  Douglas,  0  N.   Y.  444  ;  Aiken  v.  West- 

■  Fn/att  V.  Sullimn,  etc.,  5  mU,  116;  em,  etc.  20  id.  370,  382;  3fuc?Uer  v. 
affirmed,  7  Hill,  529  ;  see  Richtmj/er  v .  3Iulholle,n,  IjaIot's  Sup,  263;  Pratt  v. 
MorsH,  3  Koyes,  349  ;  Thayer  v.  Wright,  Putter,  21  Barb.  5S9. 

4  Dcnin,  180.  ■>   Yates  v.  Fassett,  5  Denio,  21. 

3  Ford   V.  Cobb,  20  N.  Y.  351  ;  Shel  »  Hall  v.  Robinson,  2  N.  Y.  293. 

don  V.  Edwards,  35  id.  283.  »  jrirls  v.  Cleveland,  39  Birb.  573. 

*  Mott  V.  Palmer,  1  N.  Y.  564.  '»  Fn-sifth  v    Wells,  1  Am.  !.aw   Reg. 

''  Anderson  V.  Nicholas,  a 'Qosyv.\21,  N.  S.  225  ;  Hilton   v.    Woods,  L.   R.,  4 

28   N.   Y.   600;  Dudley  v.  IIaicley,iO  Eq.  432;  Silsbury  v.  MeC'>on,8   N.  Y. 

Barb.  397.  379  ;  Jlyde  v.  CV>A.w«.  21  Barb,  92. 

f  Gate^  V.  Lounsbury,  20  Johns.  427  ;  "  Hilton  v.  Woods,  L.  R.,  4  Eq.  440; 

Lawrence  v.  Ocean  Ins.  Co.,  11  id.  263  ;  Silshnry  v.  McCoon,  3  N.  Y.  379;   U.  S. 

Delancetf  v.  Qanung,  9  N.  Y.  9  ;  Moran  v.  Inh'ahitants,  etc.,  Davies'a  Rop.  160  ; 

V.  McClearns,  41  How.  289  ;  Hckard  v.  Hyde  v.  Cookson,  21  Barb.  92. 


CIT.  IV  A.]       COMPLAINT   IN   PARTICULAR   CASES.  461 

flour  in  his  possession.  Held,  he  was  liable  in  trover  for  the 
value  of  litteen  barrels.'  Where  the  defendant  induced  the  plain- 
tiff to  bring  his  threshing  machine  to  the  defendant's  barn,  when, 
claiming  to  be  the  owner  of  the  wheels  of  the  wagon  on  which 
it  was  transported  he  took  them  oflP;  held,  the  jury  having  found 
he  had  no  right  to  tliem,  that  he  was  guilty  of  a  conversion  of  the 
machine  as  well  as  the  wheels.^  A  mortgagee,  in  a  chattel  mort- 
gage, who  sells  the  property  mortgaged  and  delivers  possession  to 
the  purchaser  is  not  liable  to  a  receiver  of  the  debtor,  sub- 
sequently appointed.'  It  is  only  where  a  party  has  possession  of 
property  when  a  demand  is  made,  that  a  refusal  to  deliver  it  is 
evidonce  of  a  conversion.''  After  title  has  once  passed  by  delivery 
the  former  owner  cannot  retake  it,  and  if  he  do  he  is  liable  for  a 
conversion.* 

Undertaking/ — Sureties  to  an  undertaking  upon  appeal  by 
two  appellants  conditioned  that  "  if  the  judgment  appealed  from, 
or  any  part  thereof,  be  atiirmed  the  said  appellants  will  pay ,  t  he 
amount  directed  to  be  paid  by  said  judgment  or  the  part  of  such 
amount  as  to  which  the  said  judgment  shall  be  affirmed,  if  it  be 
affirmed  only  in  part,"  are  liable  if  the  judgment  be  affirmed  as 
to  one  defendant  and  reversed  as  to  the  other ;'  and  so  though  it 
be  reversed  as  to  any  personal  liability  of  the  appellant.*  Where 
a  statute  provides  for  the  giving  of  an  instrument  and  its  purport, 
it  is  consideration  enough  to  support  the  instrument  that  it  was 
given  pursuant  to  the  statute  and  has  its  sanction  ;'  otherwise  if 
none  be  required  and  it  do  not  in  ftict  answer  any  purpose,'"  or  if 
the  appeal  be  void."  So  a  bond  given  under  an  order  which 
affords  a  party  his  election  to  give  it  or  not  is  valid.'"  The  legis- 
lature has  power  to  change  the  rule  of  damages  upon  an  under- 

'  Oillett  V.   Hill,  2  Cromp.  &  Mees.  Bail  and  Bail  Bond,  1  Till.  &  Shear. 

530,  4  Tyrwh.  290.  Prac.  589,  id.  726. 

'■*  Bowen  v.  Fenner,  40  Barb.  383.  •"  Seacard  v.  Morgan,  4  Abb.  N.  S. 

3  Fillmore  v.  Horton,  31  How.  424  ;  249,  35  How.  487. 

Toung  v.  Billiter,  8  H.  of  L.  Cases,  682.  »  Ford  v.   Townsend,  1  Abb.   N.  S. 

•»  Fillmore  v.  Eortoa,  31  How.  424.  159  i  Mills  v.  Forbes,  12  How.  466. 

5  Chambers  v.  Miller,  3  Fost.  &  Finl.  »  Slack  v.  Heath,  1  Abb.  331,  4  E.  D. 

202,  and  note.  Smith,   95  ;   Doolittle   v.  Dinmny,  31 

^  SiMfi  3  Eatee's  PI.  and   Prac.  075,  N.  Y.  350. 

169,  148,  105,  194,  1  N.  Y.  Prac.  310,  4  '»  Halsey  v.  Flint,  15  Abb.  367. 

Conw.  Rob.  Prac.  147,  et  seq.,  1  Burr.  "   Ward  v.  Syme,  8  N.  Y.  Leg.  Oba. 

Prac.  361  ;  3d  ed.,  393-895,  2   id.,  26  id.  95,  New  York  Com.  Pleas. 

146,  162,  Graham's  Prac,  2d  ed.,  171,  et  ''  Ford  v.  Townsend,  1  Abb.  N.  S.  159 
»eq.;  see  Tidd's  Prac, 4th  Am.  ed.,  title 


462  COMPLAINT   IN   PAllTICULAr.   CASES.       [CH.  IV  A. 

taking  after  it  is  given.'  Tlie  sin-eties  in  an  undertaking  to 
obtain  the  discharge  of  property  attached  are  liable  notwithstand- 
ing they  were  induced  to  execute  it  tnrough  the  fraud  of  the 
agent  of  the  defendant  unless  it  appear  that  the  plaintiif  was 
cognizant  of  such  fraud." 

An  undertaking  by  a  defendant  and  sureties  in  a  replevin  suit 
which  runs  to  the  plaintiff  instead  of  the  sheriff  is  good,'  and  in 
an  action  on  such  an  undertaking  it  is  not  necessary  to  aver  the 
issuing  of  an  execution  against  the  defendant/  nor  is  it  necessary 
upon  any  undertaking  unless  expressly  so  conditioned.''  In  an 
action  upon  an  undertaking  given  by  the  defendant  to  the  plain- 
tiff, pursuant  to  sections  186  and  187  of  the  Code,  to  procure  a 
discharge  from  arrest,  the  complaint  is  defective  in  not  showing  a 
cause  of  action  where  it  omits  to  aver  the  fact  substantially :  1. 
That  an  execution  against  the  jproperty  of  the  defendant  has  been 
issued  to  the  sheriff  of  the  county  in  which  such  defendant  was 
originally  arrested,  and  that  the  same  has  been  returned  by  such 
sheriff  unsatisfied  in  whole  or  in  part.  2.  That  an  execution 
against  the  hody  of  the  defendant,  having  at  least  fifteen  daya 
between  the  teste  and  the  return  thereof,  has  been  issued  to  the 
same  sheriff,  and  returned  that  the  defendant  cannot  be  found 
within  his  county.'  The  parties  can  waive  the  issuing  of  an 
attachment,  and  if  a  defendant  with  sureties  give  an  undertaking 
reciting  that  one  has  been  issued,  such  recital  is  a  conclusive 
waiver  of  the  issuing  of  one,  and  neither  the  defendant  nor  his 
sureties  can  show  that  none  was  in  fact  issued.'  The  undertaking 
is  sufficient  evidence  of  all  the  facts  recited  in  it ;  ^  and  if  the  court 
be  one  of  general  jurisdiction  it  is  not  necessary  to  allege  fecta 
showing  it  had  jurisdiction.*  A  right  of  action  accrues  to  a 
defendant,  in  an  attachment  suit,  upon  an  undertaking  given  on 

'  Horner  v.  Lyman,  4  Keyes,  237.  sioners'  Book  of  Forms,  No.  90,  p.  69, 

*  Coleman  v.  Bean,  33  How.  370,  3     and  adopted  by  Tifllmy  &  Smith  (3  N. 
Keyes,  94,  14  Abb.  38.  Y.  Practice,  p.  69)  is  expressly  disap- 

'  Slack  V.  Heath,  1  Abb.  331,  4  E.  D.  proved  in  this  case. 

Smith,  9o,  said  to  have  been  affirmed  *  Coleman  v.  Bean,  32  How.  370,  3 

in  court  of  appeals,  June,  1860,  6  Abb.  Keyes,  94;  Onderdonk  v.  Voorhies,  36 

Di£^.,  caries    criticized;    Livingston  v.  N.  Y.  361. 

Hammer,  7  Bosvv.  670.  ■"  Ondei  donk  v.  Voorhies,  36  N.  Y.  358. 

*  Wood  V.  Derrirkson,  1  Hilt.  410.  »  Cruyt  v.  Phillips,  7  Abb.  205  ;   see 
^  O arm tleyv.  Wheeler,  ^\  How.  137,  this   case   for   form   of  complaint    in 

2  R.  S.  382,  i^  31,  2  Edm.  St.  397.     The    issuing  attachment, 
form  re])orted   by  the  Code  Commis- 


CH.  IV  A.]       COMPLAIKT   IN   PARTICULAR  CASES.  463 

the  issuing  of  an  attachment  as  soon  as  the  attachment  is  set 
aside; '  and  after  an  attachment  is  set  aside  an  undertaking  given 
to  procure  the  discharge  of  property  levied  on  under  the  attach- 
ment cannot  be  enforced."  Where  the  defendant  undertook  in 
writing  with  the  plaintiff,  in  consideration  that  he  would  not 
imprison  his  debtor  in  any  action  brought  or  to  be  brought,  that 
the  debtor  would  at  all  times  "  obey  and  perform  the  orders  and 
judgments  of  the  court  or  courts  in  which  any  such  action  was 
brought  or  might  be  pending,  and  the  judges  or  justices  thereof," 
and  plaintiff  recovered  judgment  against  the  debtor,  which  he 
neglected  to  pay.  Held,  that  the  neglect  to  pay  the  judgment 
was  a  refusal  and  failure  to  "  obey  and  perform  the  judgment  of 
the  court "  within  the  meaning  of  the  contract.' 

The  surety  in  a  replevin  undertaking  on  the  part  of  a  plaintiff' 
is  liable  for  the  costs  on  appeal  from  a  judgment  in  favor  of  the 
defendant;*  so  a  surety  on  appeal  to  the  county  court  is  liable  for 
the  costs  on  affirmance  of  the  justices'  judgment  by  the  supreme 
court,  although  it  was  reversed  by  the  county  court.^  On  an 
undertaking  under  section  354  of  the  Code  the  sureties  are  not 
liable  to  pay  the  judgment  below.'  Sureties  to  an  undertaking 
are  liable  although  the  judgment  is  a  Hen  upon  real  estate,  and  an 
execution  has  been  issued  and  levied  upon  sufficient  property  to 
satisfy  it.'  It  has  been  held  that  when  the  law  requires  that  an 
undertaking  shall  be  executed  by  the  jprvticipal  with  sureties,  the 
sureties  were  not  liable  unless  the  instrument  was  executed  by 
the  principal;'  but  we  think  the  autliorities  are  the  other  way." 
Nor  is  an  undertaking  void  because  more  favorable  to  the  obligors 
than  required  by  statute.'"  A  surety  in  an  undertaking  who  pays 
a  judgment  against  his  principal  cannot  recover  back  the  money 
paid  thereon,  although  the  judgment  be  reversed  on  appeal  by 
the  principal."     An  undertaking  to  pay  the  "defendants"  the 

'  Freeman  v.  Young,  3  Rob.  636.  "  Onderdonk  v.  Emmons,  9  Abb.  187; 

'■'  Bildersee  v.  Aden,  10  Abb.  N.  S.  103.  Wood  v.  Derrickson,  1  Hilt.  410. 

*  Uldflin  V.  JMl,  43  N.  Y.  481.  '  Heebner  v.  Townsend,  8  Abb.  234. 

■•  Tihhles  V.  O'Connor,  28  Barb.  538.  ^  Bean  v.  Parker,  17  Mass.  004. 

^  Smith    V.   Croune,    24    Barb.   433  ;        »  Shaw  v.  Tobias,  3  N.  Y.  188 ;    Van- 

Doolittle   V.  Dininny,  31    N.   Y.  3.'J3  ;  dusen  ■v.  IIn.yward,\'llWend.  (yl. 
Wolcott  V.  Ilolcomh,  31   id.  136;   Rob-       '<*  Vnndusen  v.  Haywood,  17  Wend. 

inson  V.  Plimpton,  35  id.  484;  Ball  v.  67  ;  ques-itioning  Latham  v.  Ecierton,  fl 

Gardner,  21  Wend.  270;    BermfU  v.  Cov?.  227. 

Broicn,  20    N.   Y.   99,31    Barb.    158;       "  Oarr    v.    Martin,  30    N.    Y.    306 

Gardner  v.  Barney,  24  How.  467.  reversing  1  Hilt.  358. 


464  COMPLAINT   IN   PARTICULAR   CASES.       [CH.  IV  A. 

amount  of  a  judgment  if  it  be  affirmed  binds  tbe  parties  in  favor 
of  the  survivor  if  one  of  the  defendants  dies;'  and  so  the  sureties 
are  liable  to  a  substituted  plaintiff."  Sureties  to  an  undertaking 
remain  liable  thereon  although  their  principal  be  required  to 
furnish  further  sureties  and  he  do  so.^  The  sureties,  as  between 
themselves,  are  jointly  liable  in  such  case,^  although  the  obligee 
it  seems  can  and  probably  should  bring  separate  actions  upon  each 
undertaking. 

Bail  who  are  excepted  to,  and  fail  to  justify,  have,  nevertheless, 
a  right  to  surrender  their  principal,^  Sureties  in  an  undertaking 
continue  liable  although  they  have  been  excepted  to,  and  failed  to 
justify  ; '  otherwise  if  another  surety  be  substituted  in  his  place 
and  justify,  although  the  exception  to  the  first  be  countermanded.'' 
Sureties  in  an  undertaking  to  pay  the  amount  of  the  judgment 
below,  in  case  it  be  affirmed,  are  not  liable  if  the  judgment  be 
affirmed  with  leave  to  the  appellant  to  answer  on  payment  of 
costs,  and  he  avail  himself  of  such  leave.*  In  order  to  entitle  the 
obligee  to  maintain  an  action  upon  an  undertaking  to  pay  in  case 
of  affirmance,  there  must  be  Si  judgment  of  affirmance;  an  order 
that  the  judgment  below  be  affirmed  is  not  sufficient,  nor  will  it 
remove  the  stay  of  proceedings.' 

"Vendor  and  yendee." — When  the  vendee  refuses  to  accept  a 
sufficient  deed  of  land  the  vendor  is  exonerated  both  from  the 
obligation  to  convey  and  the  obligation  to  return  the  portion  of 
the  purchase-money  received  on  the  contract,"  even  though  the 
contract  be  void  by  the  statute  of  frauds.'''  On  a  stipulation  to 
deliver  merchandise    between  certain  days  the  last  day  is  not 

'  Burge  on  Suretyship,  65 ;  Kipling  '  Bowman  v.  Tallman,  28  How.  482, 

V.  Turner,  5  Barn.  &  Aid.  (7  Eng.  0.  19  Abb.  84. 

L.)  2r>l.  '"  See   ante,  titles  Sale,  Specific  Per- 

"^  Emerson    v.    Booth,  51    Barb.  40 ;  formance,  and    post,  title   Warranty. 

Potter  V.  V(ui  Vanvranken,  36  N.  Y.  See   Dart's    Vendors   and    Purchasers, 

619.  Billiard   on  Vendors  and  Purchasers, 

*  Jewett  V.  Crane,  13  Abb.  97,  35  Pars,  on  Cont.,  Add.  on  Cont.,  W'ashb. 
Barb.  208.  on  Real  Prop.,  Kawle  on  Covenants  for 

*  Bergen  v.  Stewart,  28  How.  6.  Title,  Benj.  on  Sales,  Hilliard  on  Sales, 
'  Oore  V.  Williams,  i  Anst.  653  ;  T7ie     Story  on  Sales,  Add.  on  Torts,  HilliaTd 

King  r.  Sheriff,  etc.,  5  Term  R.  633.  on  Torts. 

«  Decker  v.  Ander»o7i,  39  Barl).  346  ;  "  Simon  v.  Kalinke,  6  Abb.  N.  S.  225 ; 

but  see  ,l/c/»iyr^  V.  7?'y?-.<*)!,26  IIow.  411.  ^Iniroe    v.    ReyiuAth,   47    Barb.    574; 

'  Mr.lntyre  v.Borxt,2i')l\o\yA\\:  but  Havens  v.  Patterson,  43  X.  Y.  218. 

see  Ih'.ck  r  v.  Anderson,  39  Barb.  346.  '•'  Moak's  Notes  to  Clarke's  Ch.  350, 

"  P'lnpenhusen  v.  S-'Aey,  41  Barb.  450,  marg,  p. 
3  Keyes,  150,  31  How.  039. 


CH.  IV  A.]       COMPLAINT   IN   PAKTICULAR   CASES.  465 

included,  and  if  tlie  vendor  is  to  give  four  days'  notice  of  the 
time  of  delivery  he  must  give  four  days'  notice  of  the  time 
exclusive  of  the  day  last  named.' 

If  there  be  a  stipulation  in  a  deed,  or  in  another  instrument 
not  merged  in  it,  that  the  vendor  may  retain  possession  of  the 
premises  for  a  time,  and  shall  then  deliver  them  to  the  vendee, 
the  premises  are  at  the  risk  of  the  vendee,  and  he  must  sustain 
the  loss,  if  any,  by  fire  or  other  casualty.''  So  on  an  absolute  con- 
tract for  the  sale  of  land  authorizing  the  purchaser  to  take  imme- 
diate possession.^  The  plaintiff  agreed  with  defendant  to  ship 
on  board  a  vessel  a  cargo  of  ice  and  dispatch  the  vessel  with  all 
speed  to  any  ordered  port  in  the  United  Kingdom,  "  the  vendors 
forwarding  bills  of  lading  to  the  purchaser,  and  upon  receipt 
thereof  the  purcliaser  takes  upon  himself  all  risk  and  dangers  of 
the  sea,"  and  the  defendant  agreed  to  buy  and  receive  the  ice  on 
its  arrival  and  pay  for  it  an  agreed  price  in  cash  on  delivery. 
The  vessel  was  lost  by  risk  and  dangers  of  the  sea  within  the 
meaning  of  the  agreement,  and  after  the  receipt  by  the  defendant 
of  the  bills  of  lading.  Held,  that  the  clause  in  regard  to  risk, 
etc.,  only  relieved  the  vendor  from  liability  for  non-delivery  and 
did  not  render  the  vendee  liable  to  pay  for  the  ice."  An 
agreement  to  sell  and  deliver  certain  oil  described  as  "  foreign 
refined  rape  oil,  warranted  only  equal  to  samples,"  is  not  com- 
plied with  by  the  tender  of  oil  which  is  not  "  foreign  refined  rape 
oil,"  although  it  is  equal  to  the  quality  of  the  samples.*  "Where 
the  seller  gave  a  note,  valid  by  the  statute  of  frauds,  of  the  sale 
of  articles,  it  was  held  a  question  of  fact  for  the  jury  whether  he 
intended  to  be  bound  unless  the  buyer  signed  and  returned  a 
similar  agreement.' 

If  the  purchaser  of  real  estate,  by  contract,  be  in  default  the 
vendor  may  maintain  ejectment  against  him  ^  without  notice  to 
quit,  demand  of  the  amount   due,  or  of  the  possession  or   the 

1  Fowler  v.  Beqney,  5  Abb.  N.  S.  182.  *  Castle  v.  Playford,  L.  R.,  5  Excb.  IfiS. 

5  Mott  V.  Coddinrjton,  1    Abb.  N.  S.  ^  JSficJiol  v.  Godts,  10  Exch.  191,  id. 

290,  1  Rob.  267  ;  see  Gould  v.  Thomp-  195,  note  to  Johnson's  Am.  td 

son,  20  Pick.  134,  4  Mete.  224.  e  3Ioore  v.  Cmnphdl,  10  Exoh.  323. 

^  McKechnie  v.    Sterling,  48    Barb.  "^  Barney   v.   Loper,   16   l:';iib.   629 ; 

330,  334;  Gates  y.  Smith  A  Edw.  Ch.  Fuller  v. VanGeeson,iYii\\,\1\,&mvmedL 

702 ;  McLaren  v.  Hartford,  etc.,  5  N.  Howard's  App.   Cas.,  240 ;   Wright  v. 

Y.   151;   see    Gould  v.   Thompson,  20  i/borc,  21  Wend.  230 ;  ITavH*  v.  Pat 

Pick.  134, 4  Mete.  224.  terson,  43  N.  Y.  218. 

59 


466  COMPLAINT  IN"  PAETICULAE   CASES.       [CH.  IF  A. 

tender  of  a  deed  ;*  he  may  also  maintain  an  action  against  the 
purchaser  for  any  injury  done^to  the  inheritance;"  but  the  latter 
is  not  liable  for  the  rent  or  use  and  occupation  during  the  time 
he  occupies  under  the  contract,'  although  it  seems  he  is  after  the 
contract  is  ended  by  the  seller,  for  then  he  is  a  tenant-at-wilL*  If 
the  vendor  by  mistake,  with  the  vendee's  assent,  obtain  possession 
and  is  compelled  to  restore  it,  the  vendee  may  maintain  an  action 
against  him  for  use  and  occupation  ;^  although  if  the  vendor 
properly  recover  it  in  ejectment  the  vendee's  rights  in  equity  are 
ordinarily  extinguished.'  If  a  vendee  in  possession  refuse  to 
give  up  the  lands  or  to  pay  rent,  and  the  vendor  cannot  make 
title,  a  court  of  equity  will  order  the  agreement  canceled,  and 
will  order  the  purchaser  to  account  for  the  rents  and  profits.'' 

A  purchaser  in  possession  of  land  under  a  contract  to  purchase 
may  maintain  an  action  for  injury  thereto  by  setting  fire  to  the 
woods  and  fences;*  and  so  may  the  vendor  if  the  vendee  be  in 
default.'  If  the  vendee  leave  goods  with  the  vendor  after  the  con- 
tract of  sale  is  executed,  the  law  implies  a  promise  by  the  vendee 
to  pay  the  expense  of  keeping  them  ;'°  although  the  vendor  per- 
mitted him  to  take  possession  of  the  goods." 

Yoluntary  payments.'^  —  Money  voluntarily  paid  to  another 
with  a  full  knowledge  of  all  the  material  facts  cannot  be  recovered 
back ;'"  as  if  one  without  request  and  without  being  e\Ticted  pays 
taxes  against  lands  conveyed  to  him  by  a  deed  for  quiet  enjoy- 
ment ;'*  or  pays  a  void  tax  under  protest."  Protesting  against  the 
payment  does  not  change  the  rule,'*  even  though  the  payment  be 

>  Hotaling  v.  Hotaling,  47  Barb.  163 ;        » Phillips  v.  Be  Or  oat, 2  Lans.  193. 

Fierce  v.  Tuttle,  53  id.  155.  '''  Roe  v.  Martin,  2  Cow.  417,  Story  on 

^  Vandusen  v.  Young,  2Q  Barb.  id.  9  ;  Sales,  ij  404. 
not  affected  by  the  reversal,  29  N.  Y.       "  Dibbleev.  Corbett,  9  Abb.  200. 
9  ;  Phillips  v.  De  Gi'vat  2  Lans.  I;i2.  ^"^  See,  ante.  Money  Paid,  as  to  indor- 

^  Syniihv.  Steicart,  a  Johns.  ^Q;  I'mi-  ser  paying  note  without  protest,  and 

croft  V.  Wardell,  13  Johns.   489 ;  see  note  to   Partridge  v.  Partridge,  Tal- 

note   to  Ilouard   v.   ShoM,  8  Mees.  &  bot's  Rep.,  3d  ed.,  p.  228. 
Wels.  123,  Johnson's  Am.  ed. ;  (rrfrt'^on       ^^  Abell    v.   Douglass,    4    Den.    305; 

V.  Smith,  380  ;  and  see  note  to  Tan-  Hearne  v.  Eeene,  5  Bosw.  579  ;  Wyman, 

cred  V.  Christy,  12  Mees.  «Sz;  Wels.  324,  v.  Farnsworth,  3  Barb.  369. 
Johnson's  Am.  ed.  '••  McCoy  v.  Lord,  19  Barb.  18. 

*  IIoioardY.  Shaw,%  Mees.  &  Wels.  ^^  Forrest  v.  Mayor,  13  Abb.  350 
118;  pee  note  to  Johnson's  ed.  Fleetwood    v.   City    of  New    York,  2 

'  Hull  V.  Vaughan,  0  Price,  157.  Sandf.  475;  Commercial  Bank  v.  City 

^  Goodwin  v  Nelin,  35  How.  403.  etc.,  42  Barb.  488 ;  N.  Y.,  etc.,  v.  Merrit., 

'  King  v.  King,  1   Mvlne  &  Keen,  12  N.  Y.  308;    Rector,  etc.,  v.  Mayor, 

443.                                     ■  e<^..  10  How.  138. 

*  RoodY.N.  Y.,etc.,\H  Barb.  80.  ^^  Benson  v.   Monroe,  7  Cubh.   125 


on.  IV  A.]       COMPLAINT  IN   PAETICULAE   CASES.  467 

attempted  to  be  enforced  by  legal  proceedings,'  althougli  one  be 
ignorant  of  facts  so  that  a  payment  would  not  be  voluntary,  when 
he  gives  his  note,  the  court  will  not  presume  he  was  when  he  paid 
the  note,  but  he  must  prove  he  was  then  still  ignorant  of  such 
facts. "  So  if  an  executor  pays  the  interest  in  a  mortgage  incumber- 
ing property,  devised  by  the  testator's  will,'  unless  he  pay  it  out 
of  a  fund  belonging  to  such  devisee  as  directed  by  the  will.* 
Where  a  city  by  mistake  paid  more  than  the  amount  awarded 
for  land  taken,  it  cannot  recover  it  back  if  the  owner  was  told  by 
the  city  authorities  that  that  amount  was  awarded,  and  in  conse- 
quence thereof  he  forbear  filing  exceptions  to  the  report  or 
attempting  to  review  it.*  If  one,  who  has  agreed  to  do  certain 
work  after  the  other  has  removed  certain  obstacles,  on  his  neglect 
to  do  so  expend  money  in  removing  them  so  he  can  proceed  with 
the  work,  such  payment  is  voluntary  and  the  amount  so  expended 
cannot  be  recovered  back;'  so  the  payment  of  the  principal  and 
interest  on  an  usurious  loan.' 

An  indorser,  who  pays  a  note  to  the  holder  under  a  mistaken 
belief  founded  on  statements  of  the  holder  that  he,  the  indorser, 
has  been  duly  charged,  or  that  a  prior  indorser  has  been,  may,  on 
discovering  that  he  was  not  so  charged,  maintain  an  action  to 
recover  back  the  amount  paid ;  *  so  money  paid  under  a  mutual 
mistake  of  facts.' 

Where  the  owner  of  goods  is  compelled  to  pay  a  carrier  or 
other  person  holding  them  more  than  is  justly  his  due  in  order  to 
obtain  the  goods,  the  payment  is  not  voluntary  and  the  excess 
may  be  recovered  back,'"  but  this  rule  is  not  applicable  to  real 
estate ; "  or  where  the  owner  of  a  boat  pays  an  illegal  sum  in 
order  to  obtain  a  clearance  of  his  vessel ;  "  so  an  owner  of  goods 

Fleetwood  v.  City,  etc.,  2  Sandf.  475  ;  senting  opinion,  35  How.  Prac.  644,  1 

Commercial  Dank  v.  City,  etc.,  42  Barb.  Alb.  Law  Jour.  2G5. 

488;   Snnford  \.  Mayor,  etc.,  30  How.  «  TV^wp  v.  ^os5, 4  Keyes,  546. 

298,  33  Barb.  147,  12  Abb.  23.  •>  Smith  v.  Marvin,  25  How.  318. 

'  Benson  v.  Monroe,  7   Cush.    125  ;  «  iruke  v.  Artizans'  Bank,  3  Abb.  N, 

Wpman  v.  Farnsicorth,  3  Barb.  369.  S.  209. 

2  Wyman  v.  Farnsworth,  3  Barb.  369.  »  Bank,  etc.,  v.  Union  Bank,  3  N.  Y, 

^  Mo.uley  v.  Marshall,  27  Barb.  42.  230. 

The  reversal  of  the  case  in  22  N.  Y.  •"  Harmony  v.  Bingham,  12  N.  Y.  99. 

200,  does  not  aflFect  this  general  rule.  "  Fleetwood  v.  Mayor,  2  Sandf.  475. 

*  Moxely  V.  Marshall,  22  N.  Y.  200.  '^  H^yy^    y    Qelston,   13    Johns.    141 ; 

«  Mayor,  etc.,  y.Brben,  10  Bosw.  198.  Davis  v.  Bemis,  3  Am.  Law  Times  Si. 

This   judgment  was  in  fact  affirmed.  Ct.  Rep.  53,  N.  Y.  Ct.  App. 
The  opinion  in  38  N.  Y.  305,  is  a  dis- 


4(j!^  COMPLAINT   11^  PARTICULAR   CASES.       [CH.  IV  A. 

who,  under  protest,  pays  one  with  a  lien  thereon  a  charge  which 
was  not  a  lien  for  keeping  the  same/  Illegal  costs  voluntarily 
paid  an  attorney,  without  taxation,  may  be  recovered  back ; " 
otherwise  if  taxed/  If  the  owner  of  one  of  several  parcels  of 
lands  be  charged  with  the  payment  of  a  lien  thereon,  the  payment 
is  not  voluntary  unless  Tie  j)ay  it  he/ore  judgment  /*  he  is,  after 
judgment,  obliged  to  pay  the  entire  sum  in  order  to  discharge 
his  own  lands,  and  he  may  maintain  an  equitable  action  against 
the  other  owners  for  contribution  out  of  their  lands,^  although 
they  would  not  be  liable  to  a  personal  action  *  unless  they  had 
rendered  themselves  personally  liable  to  pay  it/  One  who  pays 
a  debt  for  which  he  is  not  personally  bound,  and  which  is  not  a 
charge  upon  his  property,  is  not  entitled  to  be  subrogated  to  a 
lien  which  the  creditor  had  upon  the  estate  of  the  debtor/ 

Toter,  —  An  action  lies,  by  one  who  is  legally  entitled  to  vote, 
against  an  inspector  of  election  who  improperly  refuses  to  receive 
and  deposit  his  ballots.*  A  statute  which  requires  the  voter  to 
take  what  is  commonly  called  the  "  iron-clad  oath,"  and  that  he 
did  not  desert  from  the  army  is  unconstitutional  and  void/" 
Inspectors  have  no  right  to  refuse  to  receive  the  vote  of  one  who 
would  otherwise  be  a  qualified  elector,  on  the  ground  that  he 
was  guilty  of  desertion,  unless  he  was  tried  for  and  convicted  of 
the  oifense  before  an  authorized  tribunal."  So  inspectors  are 
liable  for  refusing  to  register  a  legal  elector,  even  though  he  do 
not  offer  to  vote,'^  although  if  they  should  re-consider  and  register 

1  Somes  V.  Directors,  etc.,  8  H.  of  L.  Ch.  619 ;  Ehoood  v.  Biefendorf,  5  Barb. 

Cases,  338.  398. 

•-  Brition  v.  Frink,  3  How.  103.  '  Russell  v.  PUtor,   7  N.  Y.     173  ; 

*  Supervisors  v.  Brwf/s,  2  Denio,  28  ;  Cherry  v.  Monro,  2  Barb.  Cb.  619  ; 
Schermer7i,ornv.Vanyoast,5llowA5S.  Marsh  v.  Pike,  10  Paige,  595;  Elwood 

*  Hunt  V.  Amidon,  4  Hill,  345,  re-  v.  Diefendorf,  5  Barb.  898. 
versing,  1  Hill,  147.  s  Wilkes  v.  Harper,  1  N.  Y.  586. 

5  Tbeob.  Pr.  &  Surety,  206,  27  Penn.  »  Oreen  v.  Shumway,  39  N.  Y.   418, 

471 ;  1  Story's  Eq.  Jur.,  jjg  477,  483-4,  36  How.  5.     Tbe  case  contains  tbe  form 

506,  576  ;  2  id.,  ^  1233  a,  1  Pars,  on  of  a  complaint  in  such  case,  1  Hill,  on 

Cont.,  5tb  ed.,  33  n  ;  Hahey  v.  Reid,  9  Torts,  2d  ed.,  87  ;  see  Huher  v.  Riley, 

Paige,  446  ;  Cornell  v.  Prescott,  2  Barb.  53  Penn.   St.  112  ;   Ashby  v.  White,  3 

16.  19  ;  Torrey  v.  Bank,  etc.,  9  Pajge,  Lord  Raym.  938,  1105,  1  Salk.  19,  3  id. 

649  ;  Jumd  v.  Jumel,  7  id.  .591 ;  Van-  17,  reversed,  1  Brown's  Pari.  Cases,  45, 

derkemp  v.  Shelton,  11  id.  28  ;  Tillotson  1  Broom's  Com.  196,  note. 

V.  Boyd,  4  Sandf.  516  ;  Marsh  v.  Pike,  'o  Oreen  v.  Shumway,  39  N.  Y.  418, 

10  Paige,  595 ;    Taylor  v.  Porter,  7  36  How.  5  ;  see  Habcr  v.  Riley,  53  Penn. 

Mass.  355;    see  Sawyer  v.  Lyon,  10  St.  113. 

Jolms.  32.  '1  Gotcheus  v.  Mathesm,  58  Barb.  152 ; 

«  Hunter  v.  Hunt,  1  C.  B.  (50  Eng.  Huher  v.  Riley,  53  Penn.  St.  112. 

C.  LO  300 ;  Cherry  v.  Monro,  3  Barb.  '-  Bacon  v.  Henchley,  2  Cusb.  100  (see 


CH.  IV  A.]       COMPLAINT  IN   PAETICULAR   CASES.  469 

him  before  the  election,  so  that  his  vote  if  offered  would  have 
been  received,  they  would  not  be  liable.'  In  an  action  against  an 
inspector  of  elections  for  refusing  a  vote  it  has  seemingly  been 
held  that  malice  must  be  proved  as  laid ;  that  if  without  malice 
or  any  improper  motive,  but  in  the  honest  exercise  of  his  judg- 
ment an  inspector  refuse  the  vote  of  one  entitled  to  vote  at  an 
election,  no  action  can  be  maintained/*  It  is  not  necessary,  how- 
ever, to  prove  express  malice ;  it  may  be  inferred  from  the  fact 
that  the  decision  was  contrary  to  law.'  It  is  sufficient  that  the 
act  was  wrongful.'  Whatever  is  intentionally  done  is  done  wil- 
fully and  in  legal  parlance  ''  corruptly."  The  proof  of  doing  the 
act  is  evidence  of  a  bad  motive.* 

"Where  the  law  requires  absolutely  a  ministerial  act  to  be  done 
by  a  public  officer,  and  he  neglects  and  refuses  to  do  such  act,  he 
may  be  compelled  to  respond  in  damages  to  the  extent  of  the 
injury  arising  from  such  nonfeasance  or  misfeasance.  A  mistake 
as  to  what  his  duty  is,  and  honest  intentions,  will  not  excuse  him.^ 

Warranty." —  Ordinarily,  on  the  sale  of  an  article  to  be  deliv- 
ered in  future,  there  is  an  implied  warranty  that  it  shall  be 
merchantable,  and  if  the  article  tendered  be  not  merchantable, 
the  vendee  may  refuse,  after  a  reasonable  time  for  examination, 
to  receive  it  or  offer  to  return  it  if  he  have  received  it,  unless 
there  was  an  express  warranty  that  the  article  so  delivered  shall 
be  of  a  particular  quality,  when  he  may  recover  without  offering 
to  return.'  This  rule,  however,  does  not  apply  to  a  sale  of  what 
is  known  to  be  refuse,  as  slops  from  a  distillery.* 

The  vendor  may  warrant  that  the  article  sold  is  of  a  particular 

quality  or  kind,  as  Bristol  cabbage  seed,  when,  if  it  is  not,  he 

form  of  complaint),  1  Hill,  on  Torts,  *  Upon  the   subject,  generally,  see 

Sd  ed.,  153.  Cowen's    Tr.,   Kingsley's   ed..   Wait's 

'  Bacon  v.  Benchley,  2  Gush.  100.  Law  &   Pr.,   Pars,   on  Conts.,  Addison 

«  Tozer  v.   Child,  6   Ell.  &  Bl.  (88  on   Conts.,   Benj.  on    Sales,   Story   on 

Eng.  C.  L.)  289,  40  Eng.  Law  and  Eq.  Sales,  3  Broom's  Com.  174-6,  vols.  2,  3 

89  ;  Drew  v.  Coulton,  1  East.  563,  note  ;  and  4  of  Conw.   Rob.   Prac,  1    Steph. 

Wilson,  J.,  at  Nisi  prius,    Moran  v.  Com.  504,  2  id.  76,  Williams  on  Pers. 

^(3K.nar(?,  3  Brewster  (Penn.  Rep.),  601,  Prop.,  3d  Am.  ed.,  Z(id,marg.  p.,  and 

and  cases  cited.  elaborate  note.  Smith's  Man.  Com.  Law, 

^  Vreio  V.  Coulton,  1  East.  565,  note,  Kent's   Com.,    Broom's  Com.   on   the 

Id.  567,  note.  Com.  Law,   348-355,   Kerr  on  Frauds 

*  Poople  V.  Bogart,  3  Abb.  202,  203;  and  Mistakes.,  1st  Eng  ed. 

People  V.  Brooks,  1  Den.  457  ;  Beg  v.  '  See  ante,  this  chapter,  title  "  Sale  " 

Bolroyd,    2    Mood.  &    Rob.   339,  '341,  and  cases  there  cited,  and  Qiiiatard  v, 

M.vuLS,  J.,  JVisi  prius.  Newton,  5  Rob.  72. 

■*  Amy  V.  Supervisors,  11  Wall.  130.  ^  Ilolden  v.  Clancy,  41  How.  1. 


470  COMPLAINT  IN   PARTICULAR   CASES.       [CH.  IV  A. 

is  liable  in  damages  for  the  difi'erence  between  the  value 
of  the  cabbage  raised  from  the  seed  and  Bristol  cabbage-seed ;' 
but  a  such  warranty  must  be  specific"  and  cannot  be  implied 
from  a  knowledge  on  the  part  of  the  seller  that  the  article  is 
intended  for  a  specific  purpose  when  the  seller  is  not  a  manufac- 
turer.' So  one  is  not  liable,  in  warranty,  for  selling  a  glandered 
horse  without  any  repre'sentation  as  to  his  health  ;*  although  if 
guilty  of  fraud  he  would  be  liable  for  the  communication  by  the 
horse  of  the  disease  to  other  horses.^ 

An  agent  to  sell  is  jpresmned  to  have  authority  to  bind  his 
principal  by  a  warranty,'  and  it  has  been  held  in  England  the 
principal  is  liable  in  such  case  although,  unknown  to  the  buyer, 
the  agent  was  expressly  instructed  not  to  warrant.' 

A  contract  by  a  railroad  company  to  carry  goods  on  a  train 
which  ordinarily  amves  at  a  particular  time,  does  not  amount  to  a 
warranty  that  it  will  so  arrive,  although  the  company's  agent 
be  informed  that  the  object  of  the  sender  requires  that  it  should 
80  arrive.*  A  warranty  that  a  span  of  ponies  are  all  right  for  livery 
purposes  cannot,  it  seems,  be  construed  into  a  special  undertaking 
that  they  are  not  with  foal ;  nor  is  pregnancy  an  unsoundness,' 
One  who  sells  an  account  impliedly  warrants  that  he  has  a 
valid  demand  for  the  amount  stated  in  the  account ;'°  and  so  one 
who  sells  a  note  or  other  demand,  that  it  is  legal  and  valid,"  and 
that  the  makers  are  competent  to  contract  in  the  character  in 
which,  by  the  terms  of  the  paper,  they  purport  to  contract,'''  unless 
the  facts  are  known  to  both  parties."  So  an  agent  impliedly  war- 
rants  that  he  has   authority  from  his  principal  to  do  what  he 

'  Passinrjer  v.  Thorhnrn,  34  N.  Y.        *  Kelson  v.  Cowing,  6  Hill,  336. 
634,  35    Barb.   17;     Park    v.    Morris        -•  Howard  y.  Sherwrtrd.h.  R.,2  G.  P. 

Axe  &  Tool  Co.,  41  How.  18,  60  Barb.  147 ;  see    also  Ferguson  v.  Hamilton, 

140  ;  MUburn  v.  Belloni,  39  X.  Y.  53  :  35  Barb.  441. 

Ferris  v.  Comstock,  33  Conn.  513,  cited        ''  Lord  v.  Midland,  etc.,  L.  R.,  2  C.  P. 

2  Ana.  Law  Rev.  505  ;  see  also  Midlett  339. 
V.  Mason,  L.  R.,  1  C.  P.  559.  »  Whitney  v.  Taylor,  54  Barb.  536. 

^  Hoe  V.  Sanburn,  36  N.   Y.   98,35       ^o  Shf.r mm  v.  Johnson,  r)6  B^rh.  5d. 
How.  204.  "  Fake  v.  Smith,  1  Abb.   N.   S.  106.. 

3  Bartlett  v.  Hoppock,  34  N.  Y.  118 ;  116,  118  ;  Delaware  Bank  v.  Jarvis,  2C 

but  see  Parker  v.  Morris  Axe,  etc.,  41  N.  Y.  226  ;  Ketehum   v.  Stevens,  19  id. 

How.  18,  60  Barb.  140.  499. 

■»  5i«  V.  5««s,  2  Hurl.  &.  Norm.  399  ;        ''  Ertcin  v.    Downs,  15   N.   Y.   575; 

Mallett  V.  Mason,  L.  R.,  1  C.  P.  561-2.  Cabot  Bank  v.  Morton,  4  Gray,  156. 
See  ante,  title  "  Trespass."  '^  Curtis  v.  Brot'c  ,  37  Barb.  476 ;  but 

*  MaUett  V.   Mason,  L.  R.,  1   C.  P.  see  Ermn  v.  Downs,  15  N.  Y.  575. 
559,  see  ante,  title  "  Trespass." 


CH.  IV  A.]       COMPLAINT   IN   PARTICULAR  CASES.  471 

attempts  to  do.'  A  pledgee  who,  at  the  request  of  the  .pledgor, 
on  payment  by  his  creditor  of  the  amount  of  the  pledge,  transfers 
a  note  and  stocks  held  as  collateral,  does  not  warrant  the  genuine- 
ness of  the  stock.^  So  if,  when  a  bill  of  exchange  was  drawn 
upon  the  plaintiff  by  his  correspondent  abroad  against  a  bill  of 
lading,  sent  through  the  defendants,  who  were  bankers,  for  pre- 
sentation and  collection,  and  the  bank  presented  the  bill  to  plain- 
tiff with  this  memorandum  :  "  The  bank  holds  bill  of  lading 
and  policy  for  251  bales  cotton  per  William  Cummings,"  where- 
upon plaintiff  accepted  the  bill  without  asking  to  see  the  bill  of 
lading,  afterward  retired  it  before  due,  and  received  the  bill  of 
lading  which  proved  to  be  a  forgery,  it  was  held  that  there  was 
no  warranty  by  the  bank  that  the  bill  of  lading  was  genuine.^ 
One  to  whom  a  warranty  was  made  may  recover  for  a  breach' 
thereof,  although  he  has  sold  the  property  for  full  value  as  if 
sound,  and  his  vendee  make  no  claim  against  him  for  damages, 
and  he  is  liable  to  none.*  Known  or  patent  defects  are  not 
covered  by  a  general  warranty,  although  it  be  a  written  one.* 
Whether  defects  are  visible  is  a  question  of  fact  for  the  jury.* 

It  has  been  held  in  New  York,  by  a  divided  court,  that  where 
provisions  are  sold  as  merchandise  and  not  for  immediate  con- 
sumption by  the  purchaser,  there  is  no  implied  warranty  of 
their  soundness.''  It  has  also  been  there  held  that  on  a  sale  of 
provisions  for  immediate  use  by  the  purchaser  there  is  such  a 
warranty.*  The  latter  proposition,  however,  is  contrary  to  the 
English  authorities,"  except,  perhaps,  in  the  case  of  a  guest  at  an 
inn,  when  the  inkeeper  is  liable  for  furnishing  his  guest  with 
improper  food ; "  and  where  the  purchaser  does  not  select  the 

'  See  ante,  title  "  Agent."  E.  D.  Smith,  234 ;  Ooldrich  v.  Ryan,  3 

2  Ketchwm  v.  Stevens,  19  N.  Y.  499.       id.  324 ;  Winsor  v.  Lombard,  18  Pick, 

3  Leather  v.  Simpso?i,  L.  R. ,  11  Eq.     61 ;  Story  on  Sales,  §  373. 

398.     This  case  seems  (p.  407)  to  have  ^  Hoses  v.  Mead,  1   Denio,  378  ;  Van 

gone  upon  the  theory  that  the  plaintiflF  Bracklin  v.  Fonda.,  12  Johns.  468  ;  1 

trusted  to  his  own  correspondent  that  Pars.  on.  Cont.,  5th  ed.,  588,  note  c. 

he  would  not  transmit  any  thing  but  a  ^  Emmerton  v.  Matthews,  7  Hurl.  & 

genuine  bill.     See  Ketchum  v.  Stevens,  Norm.  586,  1  Am.  Law.  Reg.  N.  S.  231 ; 

19  N.  Y.  499.  Burnhij  v.  Bollett,  16  Mees.  &  Wels. 

*  Midler  v.  Eno,  14  N.  Y.  598.  644,  654 ;  Birjfje  v.  Parkinson,  7  Hurl. 

^  Schuyler   v.  Buss,  2  Caines,  202 ;  &  Norm.  955,  961 ;  Benjamin  on  Sales, 

eee  1  Cow.  Tr.,  ^  253,  Kingsley's  ed.  493-4,  Add.  on  Cont.,  6th  Eng.  ed.,  214. 

6  Birdseye  v.  Frost,  34  Barb.  367.  ">  Add.  on  Cont.,  6th  Eng.  ed.,  214  ; 

'  Moses  V.  Mead,^i  Denio,  617,  affirm-  Bigge  v.  Parkinson,  7  Hurl.  &  Norm, 

ing  1  id.  378 ;  Hyland  v.  Sherman,  2  961. 


472  COMPLAINT  liST   PAETICULAK   CASES.       [CH.  IV  A. 

provisicms,  but  orders  those  of  a  particular  kind  or  quality,  there 
is  the  usual  implied  warranty  that  the  article  furnished  shall  cor- 
respond with  that  ordered.'  The  rule  in  Massachusetts  seems  to 
be  the  same  as  in  England," 

A  warranty,  to  be  valid,  must  be  made  during  the  negotiations 
for  a  sale.  If  representations  as  to  the  soundness  of  a  horse  are 
made  the  day  before  a  sale,  when  the  buyer  is  examining  him, 
but  not  during  negotiations  for  a  sale,  the  seller  is  not  liable  if 
the  horse  be  put  up  and  sold  without  warranty  at  a  public  auction, 
although  the  buyer  be  induced  to  purchase  by  the  defendant's 
assurance  of  soundness,^  although  the  defendant  would  probably 
be  liable  in  fraud  in  case  of  a  fraudulent  representation."  But 
when  an  auctioneer  represents  at  the  time  of  sale  that  an 
article  is  a  particular  thing,  or  of  a  particular  quality,  it  is 
a  question  of  fact  for  the  jury  whether  the  representation 
does  not  amount  to  a  warranty."  But  a  warranty  made  after 
a  sale  and  deliver3^,  but  before  the  giving  of  a  note  for  the 
property  sold,  is  valid.*  A  warranty  made  after  a  completed 
sale,  unless  upon  new  consideration,  is  invalid,'  On  the  trial  of 
an  action,  evidence  of  what  an  article  sold  for  at  public  auction 
is  admissible  on  the  question  of  damages,*  but  not  what  it  sold  for 
at  a  private  sale.*  Where  only  a  portion  of  the  packages  contain- 
ing property  sold,  imported  at  the  same  time  and  exposed  to  the 
same  injuries,  was  examined  and  found  damaged,  it  was  held  a 
jury  was  authorized  to  find  that  all  were  damaged  in  the  same 
way ;'"  but  evidence  that  butter  was  in  a  damaged  condition  on 
arriving  at  its  destination  two  or  three  weeks  after  it  was  shipped, 
it  being  exposed  during  that  time  so  it  might  have  been  thus 
injured,  does  not  authorize  a  jury  in  finding  that  it  was  damaged 
when   shipped,"      Upon    judicial   sales   there   is   no    warranty, 

>  Add.  on  Cont.,  6tli  Eng.  ed.,  214;  Bench,  234  (43  Eng.  C.  L.)  1  N.  Y.  Leg. 

Big<-je  v.  Parkinson,  7  Hurl.  &  Norm,  Obs.  220. 

96l!  ^  Campbell  v.   Woochcorth,  20  N.  Y. 

«  Emerson  v.  Brigham,  10  Mass.  200 ;  499 ;  Dixon  v.  Buck,  42  Barb.  74  ;  Gill 

Bee  Winsor  v.  Lombard,  18  Pick.  61-2.  v.  McNamee,  42  N.  Y.  44,  46  ;  but  see 

3  Hopkins  v.  Tanqueray,  15  C.  B.  (80  Wells  v.  Kelsey,  37  id.  143,  146,  and 

Eng.  C.  L.)  130,  26  Eng.  Law.  and  Eq.  Bpringstead  v.  Lawson,  14  Abb.  328  as 

254.  to  cross-examination. 

*  Id.  '  Boe  V.  JIawson,  5  Lans.  304. 

»  Hawkins  v.  Cliford,  44  How.  102.  '«  Muller  v.  Eno,  14  N.  Y.  603. 

«  Vincent  v.  Leland,  100  Mass.  432.  "  Travis  v.  Jenkins,  30  How.  153 

'  Boacorla    v.    Thomas,    3    Queen's 


CH.  IV  A.]       COMPLAINT   IN"   PAETICULAK   CASES.  473 

express  or  implied.*  A  warranty,  unless  explicitly  for  the 
future,  is  in  the  present  tense ;  that  the  property  is  sound,  and 
not  that  it  will  remain  so.''  If  one  grant  a  right  to  carry 
water  from  a  spring  by  means  of  pipe  beneath  the  surface 
of  the  earth,  and  then  convey  with  covenants  for  quiet  enjoy- 
ment and  of  warranty,  the  deed  is  not  broken ;  the  purchaser 
can  only  protect  himself  by  a  covenant  against  incumbrances ; ' 
otherwise  if  another  has  a  right  of  way  over  the  premises 
conveyed.*  One  who  is  in  possession  of  property,  and  sells 
it,  impliedly  warrants  that  he  has  title  thereto ;  that  it  is  free 
from  incumbrances,  and  the  purchaser  will  acquire  a  valid  title.* 
But  if  at  the  time  of  the  sale  the  property  be  in  possession  of 
another  no  warranty  of  title  arises  from  the  sale  unless  the  seller 
affirm  that  he  has  title.*  If  the  vendee  be  sued  by  one  claiming 
paramount  title  he  ma}^  notify  the  vendor  of  such  suit  and  request 
him  to  defend  the  action  when  the  judgment  will  conclude  the 
vendor ;'  or  he  may  defend  without  such  notice,  and  if  evicted 
sue  upon  the  warranty  and  show  title  in  such  stranger  by  evi- 
dence aliunde  the  judgment  roll ;  *  but  he  can  only  recover 
nominal  damages  unless  he  have  paid  the  judgment  recov-- 
ered.°  So  the  purchaser  may  yield  possession  to  the  owner  by 
title  paramount,  and  on  proof  of  that  fact  recover  against  his 
vendor,  but  there  must  be  an  eviction  in  some  way."  When 
one  sells  property  which  is  left  in  his  possession,  although  if  he 
had  no  title  he  is  liable  upon  his  implied  warranty  of  title,  yet, 
when  sued  in  trover  for  not  delivering  the  property  on  demand, 
he  may  defend  by  showing  he  was,  prior  to  tlie  demand,  evicted 
by  a  title  paramount."  Where  a  portion  of  a  demand  sold  has  been 
paid,  a  second  purchaser  may  recover  of  the  assignor  the  amount 

^  The  Monte  Allegro,  %^]xe2.t.UQ;  *  Mofat    v.    Strong,    9    Bosw.    57; 

Ball  V.  Pratt,  36  Barb.  402.  Sweetman  v.  Prince,  26  N.  Y.  231,  232 ; 

^  Pirrson  v.  Hoag,  47  Barb.  243.  Burt    v.   Deiopy,  31    Barb.    540 ;    the 

3  McMullen  v.  Wooley,  2  Lans.  394.  reversal  of  this  case  in  40  N.  Y.  283, 

"*  Bridger  Y.Pierson,  1  Lans.  481.  does  not  aiFect  the  judgment  on  this 

^  Dresser  v.  Ainsworth,  9  Barb.  619 ;  question ;  see  Fake  v.  Smith,  7  Abb, 

Johnson    v.   Hathorn,  2   Keyes,  477;  N.  S.  113-115. 

Burt  V.  Dewey,  40  N.  Y.  283 ;  Carman  »  Burt  v.  Dewey,  40  N.  Y.  283. 

V.  Trude,  25  How.  440.  lo  Sweetman  v.  Prince,  26  N.  Y.  224, 

«  McCoy  V.    Archer,    3    Barb.   329 ;  231,  232. 

Bdick  V.  Crim,  10  Barb.  445  ;  Scranton  '^  Huntington  v.  Douglass,  1  Abb.  N. 

V.  Clark,  39  Barb.  273.  S.  385,  1  Rob.  204. 
■>  Fake  v.  Smith,  7  Abb.  N.  S.   113- 

115;  Barney  v.  Dewey,  13  Johns.  221. 

60 


474  coMPLAiJsrr  i^  pahticulae  cases,     [ch.  it  a. 

wliicli  bad  been  paid  tbereon  at  tbe  time  of  bis  assignment/  On 
a  contract  for  tbe  ssle  of  an  agreement  for  a  lease,  it  is  not  an 
implied  condition  tbat  tbe  lessor  bas  power  to  grant  tbe  lease ;' 
but  one  wbo  agrees  to  let  certain  premises  impliedly  warrants  tbat 
be  bas  a  good  title  to  let  tbem.'  If  an  article  be  ordered  for  a 
special  purpose,  and  be  sold  for  tbat,  tbere  is  an  implied  warranty 
of  fitness  for  tbe  purpose ;'  but  tbe  rule  does  not  apply  wbere  a 
special  tbing  is  ordered,  tbougb  intended  for  a  special  purpose." 

Waste/  —  A  party  wbo  redeems  land  sold  on  execution,  after 
i-eceivino'  tbe  sberifi 's  deed  may  maintain  an  action  in  tbe  nature 
of  waste  or  an  action  on  tbe  case  against  any  person  wbo,  inter- 
mediate tbe  sale  and  tbe  sberiff's  deed,  cuts  and  takes  timber 
from  tbe  premises  or  otberwise  injures  tbem,'  tbougb  be  be  tbe 
purcbaser  at  tbe  sberiff's  sale  and  cut  tbe  timber  witb  tbe  con- 
sent of  tbe  judgment  debtor  wbo  was  in  possession,"  or  even  if  be 
be  tbe  defendant  in  tbe  execution.'  A  mortgage,  however,  is  a 
lien  upon  and  not  a  title  to  tbe  land.*  No  action  will  lie  by  a 
mortgagee,  not  in  possession,  against  anotber  for  negligently 
injuring  tbe  mortgaged  premises,  but  an  action  on  tbe  case  will 
lie  against  one  wbo,  with  intent  to  defraud  the  plaintiff,  bas 
destroyed  or  injured  tbe  premises  upon  wbicb  be  bas  a  lien  by 
mortgage  or  judgment."  In  sucb  case,  bowever,  tbe  complaint 
must  aver  tbat  tbe  party  personally  liable  as  mortgagor  or  judg- 
ment debtor  was  insolvent  or  unable  to  pay."  In  Massacbusetts, 
bowever,  it  bas  been  beld  tbat  a  mortgagee  migbt  recover  tbe  full 
amount  of  damages  to  tbe  mortgaged  premises  witbout  regard  to 

1  Furniss  v.  Ferguson,  3  Rob.  269,  34  Willard's  Eq.,  Smith's  Man.  of  Com. 

N.  Y.  485.  Law,  Williams  on  Real  Prop.,  Wash- 

^  Kintreav.Peiston.l'S.uTl.&.'NoTm.  burn's  Real  Prop.,  Bouv.   Law  Diet., 

357.  Daniell's  Ch.  Pr.,  Estee's  PI.  and  Pr., 

3  Stranks  v.  St.  Johns,  L.  R.,  2  C.  P.  Reeve's  History  of  Eng.  Law,  Tidd's 

376.  Pr.,  2  Burr.  Pr.,  2d  ed..  Grab.  Pr.,  2d 

*  Port   Carbon,  etc.,    v.    Groves,    68  ed.,  2    Conw.    Rob.    Pr.  631-5;   3  id. 

Penn.  St.  149.  164^6,  417-8;  4  id.  761,  825-7;  Sedg. 

^  Upon   The   subject,  generally,  see  on  Dam.  129,  161,  et  scq.,  marg.  pp. ; 

note  to  Phillips  v.  Smith,  14  Mees.  &  Chitty's  PI. 

Wels.  505,  Johnson's   Am.  ed ;   notes  *  Thomas  v.  Crofut,  14  N.  Y.  474. 

to  Saunders's  Rep.,  ed.  1871 ;  note  to  '  Rich  v.  Baker,  3  Denio,  79. 

2    Peere    Wms.    Rep.,    ed.     1826,    p.  »  Waring  y.  Smyth,  2  B&rh.  Qh..  119) ; 

241 ;  note  to  Davis  v.  The  Duke,  etc.,  Astor  v.  Miller,  2  Paige,  68 ;  Astor  v. 

2  Swanst.  153 ;  Broom's  Com.,  Kent's  Hoyt,  5  Wend.  603. 

Com.,    Stephen's    Com.,    Addison    on  **  Gardner  v.  Heartt,  3  Denio,  232. 

Torts,  Hilliard  on  Inj.,  Kerr  on  Inj.,  '"  Gardner  v.  Heartt,  3  Denio,  232  • 

Wat.  Edun  on  Inj.,  Story's  Eq.  Jur.,  Lane  v.  Hitchcock,  14  Johns.  213. 
Adams's   Eq.,    Smith's  Man.   of   Eq., 


en.  IV  A.J       COMPLAIKT   IN   PARTICULAR   OASES.  475 

the  sufficiency  of  his  security,  and  although  the  mortgagor  had 
sued  the  defendant  for  the  same  acts. '  If  a  mortgagee  be  in  pos- 
session when  an  injury  is  done  to  the  mortgaged  premises  he  has 
a  conditional  title,  and  on  perfecting  it  by  foreclosure  may  main- 
tain an  action  against  the  wrong-doer."  A  mortgagee  may  main- 
tain an  action  on  the  case  against  the  mortgagor,  or  a  person 
claiming  under  him,  for  waste  committed  upon  the  mortgaged 
premises  after  forfeiture  of  the  mortgage,  and  after  a  decree  for 
a  sale  of  the  mortgaged  premises  has  been  obtained,  where  the 
mortgagor  is  insolvent  and  the  mortgaged  premises  are  a  slender 
security  for  the  mortgage  debt ; '  otherwise  lefore  forfeiture.*  He 
cannot  maintain  trover  for  trees  cut  by  the  mortgagor.'  After 
timber  upon  the  mortgaged  premises  has  been  cut  and  severed 
from  the  freehold  a  court  of  equity  will  not  restrain  the  removal,* 
althouj^h  it  will  restrain  future  waste,'  and  decree  an  account  of 
the  timber  cut,*  and  if  the  mortgagor  be  insolvent,  and  the  mis- 
chief to  the  plaintiff  will  be  irreparable,  the  court  will  restrain 
the  removal  of  timber  already  cut.' 

The  doctrine  of  relation  does  not,  however,  apply  where  a  deed 
is  signed  and  acknowledged  before  timber  is  cut  by  license  from  the 
grantor,  but  not  delivered  until  after  the  cutting.  In  such  case 
no  action  lies  by  the  grantor  against  the  person  so  cutting ;'  nor 
could  he  have  maintained  an  action  against  the  vendor  for  cutting 
timber  between  the  contract  of  sale  and  a  delivery  of  the  convey- 
ance.'" It  has  been  held  in  England  that  a  lessee  for  years  who 
cuts  down  willows,  leaving  the  butts,  from  which  they  will  shoot 
afresh,  is  not  guilty  of  w^aste  unless  they  were  a  shelter  to  the 
house  or  a  support  to  the  bank  of  a  stream."     A  tenant  with  the 

»  Gooding  v.  Shea,  103  Mass.  360.  v.  Alberty,  11  Wend.  160,  Willard's  Eq. 

'^  Laflin  v.  Griffiths,  35  Barb.  58.  Jur.  371, 379 ;  WinsMp  v.  Pitts,  3  Paige, 

^  Southworth  v.   Van  Pelt,  3   Barb.  259;  Ensign  v.  Colburn,  11  Paige,  5U3; 

347, 4  Comst.  110  ;  Lane  v.  Hitchcock,  14  Johnson  v.  White,  11  Barb.  194,  3  Sto. 

Jolins.  213.  Eq.  Jur.  1016-1017. 

4  Peterson  v.  Clark,  15  Johns.  205.  ''  Weatherly  v.  Wood.,  29  How.  406. 

^Waisoh  V.  McClay,  5   Johns.   Ch.  »  Shear  \.  Cutler,  bB&vh Am,  2  Co&q 

169  ;  Fan.  TF^/c^- V.  J.«/5^^r,  6  Barb.  507  ;  R.   100;    Johnson  v.  White,   11  Barb, 

People  V.  Alberty,  11  Wend.  160,  Wil-  197,  2  Story's  Eq.  Jur.,  §  957,  id.,  § 

lard's  Eq.  Jur.  371,  379  ;    Winsfdp  v.  1016-1017. 

Pitts,  3  Paige,  259  ;  Johnson  v.  White,  »  Pratt  v.  Potter,  31  Barb.  589. 

11  Barb.  194.  '"  Tahor  v.  Robinson,  36  Barb.  483. 

e  Watson  V.  McClay,  5   Johns.  Ch.  "  Phillips    v.    Smith,    14    Mees.    & 

169 ;  Hawley  v.  Cloices,  2  id.  133  ;  Van  Wels.  589. 
Wyck  V.  Alliger,  6  Barb.  507 ;  People 


476  COMPLAINT  IN  PAETICULAR   CASES.       [CH.  IV  A. 

privilege  of  cutting  fire-wood  or  fencing  cannot  obtain  his  fire- 
wood or  fencing  materials  elsewhere,  and  then  cut  as  much  timber 
from  the  demised  premises ;'  but  the  tenant  may  not  only  cut 
fire-wood  for  his  own  house,  but  also  that  of  his  servant,  who 
cultivates  the  land,  provided  it  can  be  done  without  injury  to  the 
inheritance,'^  unless  there  be  a  scanty  supply  of  timber/  The 
reversioner  may  recover  for  waste  by  a  tenant,  although  after  its 
commission  he  alienate  the  estate  and  have  no  interest  therein  at 
the  time  the  suit  is  brought/  Plaintiff  may  recover  for  negligent 
waste,  as  in  suffering  a  building  to  be  burned,  although  the  com- 
plaint charge  the  defendant  with  having  wrongfully  set  fire  to  it/ 
It  is  waste  to  cut  valuable  timber  trees  on  a  farm  with  a  scanty 
stock  of  wood  and  timber  f  so  to  remove  coarse  bog  grass  from  a 
farm  which  has  usually  been  foddered  thereon ;  so  to  impoverish 
fields  by  constant  tillage  from  year  to  year ;  it  is  not  waste  to  sell 
hay  to  be  removed  from  the  farm,  when  such  is  the  custom  in  the 
vicinity;  nor  to  erect  a  new  out-house  with  timber  from  the 
farm,  in  place  of  one  which  had  become  ruinous.'  A  court  of 
equity  will  restrain  a  tenant  for  life  from  cutting  ornamental 
trees,  irrespective  of  the  question  wdiether  or  not  any  damage 
would  be  occasioned  by  such  cutting;'  yet  where  they  have 
actually  been  felled,  and  the  reversioner  claims  damages  from  the 
tenant  for  life,  the  amount  of  damages  can  only  be  measured  by 
the  damages  to  the  inheritance.*  Where  a  court  of  equity 
acquires  jurisdiction  to  stay  future  waste  it  has  an  incidental 
power  to  decree  an  account  for  waste  already  committed.^ 
Water  and  Water-courses."  —  One  who,  without  legislative 

■  Clarke  v.  Cnmmings,  5  Barb.  340;  on  Easements,  Goddard  on  Easements, 

Atty.-Oen.  v.  Stawell,  2  Aust.  596,  601  ;  Washburn  on  Real  Property,  Addison 

Cower  V.  £^j/re,  Geo.  Cooper's  Rep.  156  ;  on  Torts,  Plilliard  on  Torts,  Ililliard'd 

Vandusen  v.  Young,  29  N.  Y.  10 ;   but  Rem.  for  Torts,  Bouv.  Law  Dictionary, 

Ben  Saiies  V.  Sarles, 3  Sandt.  Ch.  GOl.  Broom's  Com.,  Broom's  Com.  on  the 

*  Garner  v.  Derring,  1  Paige,  57:3.  Common  Law,  Cowen's  Tr.,  Kingsley's 
'  Sarles  v.  Sarles,  3  Sandf.  Cli.  601.  ed.,  1  Wait's    Law  and  Pr.,  Kerr  on 

*  Robinson  v.  Wheeler,  25  N.  Y.  252.  Inj.,  Billiard  on  Inj.,  2  Daniell's  Ch. 
^  Sorlesv.  Sarles,  3  Sa,ndf.  C\\.  QOi;  Pr.   16:i8-1640,    Black.    Com.,    Kent'3 

Vandusen  v.  Young.  29  X.  Y.  10.  Com.,  2  Story's  Eq.  Jur.,  ^  927 ;  Wat. 

^  Sarles  \.  Rarles,  3 '&a.nAi.Q\\.(){)\.  Eden   on    Inj.,   Steph.   Com.,    Smith's 

■*  J5i^*&  V.  Feioer^on.L.  R.,  10  Eq.  465.  Man.  Com.    Law,  Willard's  Eq.  Jur., 

8  Bubb  V.  Yelverton,  L  R.,  10  Eq.  465;  Williams  on  Real  Prop.,  2  Couw.  Rob. 
To7inr;  V.  Vandnxen,  20  N.  Y.  9.  Pr.  675-68:5.  3  Conw.  Rob.  Pr.,  620-1, 

9  Weatherly  v.  Wood,  29  How.  404.        4  Conw.  Rob.   Pr.  811-829,  id.  7G(i-7. 
'"Upon   the   subject,   generally,  see    Estee's  PI.  und  Pr.,  Tidd's  Pr.,  Chitty's 

Angell  on  Water-courses,  Washburn     Pleadings. 


CII.  IV  A.]       COMPLAIIS-T   I]^f   PAETICULAE   CASES.  477 

authority,  interferes  witli  the  current  of  a  running  stream,  is  re- 
sponsible, absolutely  and  without  regard  to  actual  negligence,  for  the 
damages  sustained  in  consequence  of  his  interposition.'  Where, 
however,  the  acts  are  done  pursuant  to  legislative  authority  —  as 
the  building  of  a  railroad  —  upon  making  compensation  the  party 
obstructing  the  stream  is  liable  only  for  the  w^ant  of  due  care  and 
skill  in  so  arranging  the  necessary  works  as  to  avoid  any  danger 
reasonably  to  be  anticipated  from  the  habits  of  the  stream  and  its 
liability  to  floods  -^  but  if  a  stream  of  water  be  changed  by  a  railroad 
company,  it  must  be  preserved  and  restored  to  its  channel  without 
expense  of  preservation.'  So  if  one  raise  a  dam  for  his  own  pur- 
poses, he  is  liable  for  the  overflow  or  the  percolation  of  water 
through  its  banks.''  Wharves  built  by  the  owner  of  lands  adjoin- 
ing thereto,  pursuant  to  an  act  of  the  legislature,  below  low- water 
mark,  are  not  a  nuisance,  nor  have  the  public  a  right  to  pass  over 
them  as  if  a  public  highway.* 

The  owner  of  low  lands  is  not  obliged  to  drain  or  ditch  them 
so  as  to  carry  ofl'  surface  water  for  the  benefit  of  his  neighbor 
below  him ;  nor  for  the  purpose  of  draining  the  low  lands  of  his 
neighbor  above  him.  lie  may  fill  up  his  own  low  grounds, 
although  the  water  from  marshes  of  his  neighbor's  lands  cannot 
be  carried  off";*  and  may  drain  his  own  land  for  agricultural  pur- 
poses in  order  to  get  rid  of  mere  surface  water,  the  supply  of 
water  being  casual,  and  its  flow  following  no  regular  or  definite 
course ;  and  a  neighboring  proprietor  cannot  complain  that  he  is 
thereby  deprived  of  such  water  which  would  otherwise  have  come 
to  his  land  ;  so  though  the  water  be  used  for  other  portions  of  the 
owner's  premises;',  otherwise  if  the  water  collects  and  flows  in  a 
well  defined  channet.*  If  the  owners  of  difierent  mills  draw 
water  from  the  same  dam  each  is  bound  to  contribute  to  its 
repairs.*  If  the  bank  of  a  creek  give  w-ay,  the  owner  of  the  land 
on  which  it  gives  way  is  not  bound  to  rebuild  the  bank  or  restore 

1  Bellinger  v.  W.  T.  Gent.  R.  R.  Co.,  70,  but  see  Moak's  notes  to  Clarke's 
23  N.  Y.  42  ;  Pi^ey  v.  Clark,  35  id.     Ch.  344,  marg.  p. 

524.  6  Goodale  v.  Tuttle,  29  K.  T.  459  ;  see 

2  Bellinger  v.  N.  Y.  Cent.  R.  R.  Co.,    Rixley  v.  Clarke,  35  id.  529. 

23  N.  Y.  42.  '  Ratoston  v.  Taylor,  11  Excli.  369, 

3  Cott  V.  Lewiston,  36  N.  Y.  214,  34  Brondbent  v.  Ramshotham,  11  id.  602; 
How.  222,  225.  See,  however,  Arnold  Swett  v. Colts,  11  Am.  Law  Reg.  N.  S.  11 
V.  Hudson,  etc.,  49  Barb.  IDS.  *  Jack  v.  Martin,  12  Wend.  330. 

*  Pixley  V.  Clark,  35  N.  Y.  520.  '  Benman  v.  Prince,  40  Barb.  213  ; 

*  Wetmore  v.  Atlantic,  etc.,  37  Barb.    See  Jones  v.  Turner,  46  id.  528,  529. 


478  COMPLAINT   IJSr   PARTICTTLAE   CASES,       [CH.  IV  A. 

the  creek  to  its  channel ;'  but  the  owner  of  lands  below  has  a 
right  to  enter  upon  his  neighbors  land  and  repair  the  bi'each.' 
The  owner  of  land  may  sink  a  well  thereon  though  by  so  doing 
he  tap  a  subterranean  vein  of  water  which  supplies  his  neigh- 
bor's well  and  thereby  renders  it  worthless/  unless  he  thereby 
draw  oiF  water  flowing  in  a  defined  surface  channel.^  The 
owner  of  lands  has  a  right  to  the  flow  of  water,  uncontami- 
nated  by  those  above  him,  and  if  it  be  contaminated  he  may 
sustain  an  action  for  the  injury  he  sustains  thereby/  The 
owner  of  land  in  a  stream  has  no  right  to  throw  refuse  —  such  as 
tanbark  —  therein,  to  the  injury  of  those  below  him  ;*  but  the 
owner  of  a  saw-mill,  in  the  use  thei*eof  in  a  reasonable  manner, 
has  a  right  to  discharge  the  sawdust,  shavings  and  waste  from  it 
in  the  ordinary  course  of  using  such  mills.  He  has  no  right, 
however,  wantonly,  needlessly  and  out  of  the  ordinary  course  in 
such  cases,  to  throw  or  permit  them  to  go  into  the  stream,  so  as  to 
cause  injuiy  to  the  owner  of  a  starch-mill  below/  One  who  per- 
mits flax-shives  to  float  down  a  stream  and  lodge,  so  as  to  injure 
the  usefulness  of  his  neighbor's  dam  below,  is  liable  for  such 
injury/  On  changing  the  site  of  a  water-course,  although  there 
was  a  waste-weir  in  the  old  site,  this  gives  no  right  to  one  in  the 
new  raceway.*  The  conveyance  of  a  mill  ordinarily  conveys  a 
raceway  over  other  lands  of  the  grantor,  and  the  grantee  of  the 
other  lands  takes  them  subject  to  such  right.^"  But  this  rule  does 
not  apply  to  cases  where  the  grantor,  owning  large  tracts  of  lands, 
does  not  know  of  the  existence  of  such  raceway;"  nor  does  it 

'  Jones  V.  Turner,  46  Barb.  528.  ^  Carliart  v.  Auburn,  etc.,  22  Barb. 

*  Waslib.  on  Easements,  283,  marg.  297 ;  Hoiosee  v.  Hammond,  89  id.  89. 
p.;  Prt'scott  V.  Williams,  5  Met.  433-6;        ^  Ilowsee  v,  Hammond,  39  Barb.  89. 
Prescott  V.  White,  21  Pick.  341 ;  Kauf-        '•  Jacobs  v.  Allard,  42  Vt.  303. 

man  v.  Griesnan,    2G  Penn.   St.  407,  *  O'Rciley  v.  AfcChesney,  3  Lans.  278. 

413 ;  Darlington  v.  Painter,  7  id'.  473,  '  Packer  v.  Rochester,  etc.,  17  N.  Y. 

475,  Ang.   on   Water-courses,  §§  163,  283. 

890.  10  4  Am.  Law  Rev.  40-62  ;  Lampman 

^  3  Alb.  Law  Jour.  397,  2  Am.  Law  v.    Milks,  21   N.  Y.   505 ;   Babcock  v. 

Reg.  N.  S.  65;  Trustees,  etc. ,  v.  Youmans,  Utter,  1  Keyes,  408-9,  427;  Simmons 

50  Barb.  316,  45  N.  Y.  362,  Smith's  Man.  v.   Cloonan,'2   Lans.  346;   Arnold  v. 

Com.  Law,  1st  Am.  ed.,  159  (135,  marg.  Hudson,  etc.,  49  Barb.  120  ;    Watts  .v. 

p.);  Chaseman  v.  Richards,  2  Hurl.  &  Kelson,  L.  R.,  6  Ch.  App.  166  ;  Burr  v. 

Norm.  168,  7  House  of   Lords  Cases,  Mills,  21  Wend.  290 ;  but  see  Butter- 

349 ;   see,   also,   Rylands  v.   Fletcher,  worth  v.  Craicford,  46  N.  Y.  349. 

L.  R.,  3  H.  L.  333.  "  Tabor  v.  Bradley,  18  K  Y    109; 

*  Grand   Junction,  etc.,  v.  Shugar,  Babcock  v.  Ulter,  1  Keyes,  427. 
L.  R.,  6  Ch.  App.  483. 


CH.  IV  A.]       COMPLAINT  IN   PAETICULAR  CASES.  479 

apply  where  the  owner  of  land  sells,  without  reservation,  a  portion 
of  the  land  over  which  was  a  race  to  his  mill ;'  but  he  may  reserve 
such  a  right  over  lands  which  he  conveys.''  A  grant  of  a  mill  site, 
on  which  there  is  no  mill,  conveys  no  right  to  flow  adjoining 
lands.'  An  agreement,  for  a  valuable  consideration,  that  one  may 
erect  a  dam,  and  back  the  water  of  a  creek  upon  the  grantor's 
lands,  is  binding  upon  subsequent  owners  of  the  grantor's  title, 
although  at  the  time  they  purchased  the  old  dam  had  fallen  down 
and  no  other  had  been  erected  in  its  place  ;*  but  a  mere  verbal 
license  to  erect  a  dam  may  be  revoked,  although  the  licensee  have 
expended  money  on  the  faith  of  such  license.^  In  trespass,  for 
destroying  a  dam,  the  plaintiff  may  recover  for  interruption  of 
the  use  of  the  mill,  provided  such  special  damages  be  alleged  in 
the  complaint.' 

Where  one  owns  lands  on  both  sides  of  a  stream,  on  one  side 
of  which  is  a  fulling-mill  and  the  other  a  grist-mill,  and  he  con- 
veys them  to  different  persons  with  a  prohibition  and  restriction 
in  the  deed  against  using  the  waters  except  for  a  fulling-mill  and 
a  grist-mill,  the  prohibition  is  void.''  Where  the  right  to  use  the 
water  in  a  dam  was  granted  provided  the  back-water  was  not 
raised  higher  than  the  apron  of  the  mill  above,  as  it  now  lays,  the 
grantee  cannot  use  all  the  water  in  the  dam  if  it  would  raise  the 
water  higher  than  such  apron."  One  who  purchases  land  may 
restrain  a  former  tenant  from  diverting  it  from  its  regular  channel, 
although  he  M^as  doing  so  at  the  time  of  the  purchase.*  Granting 
the  water  of  a  dam  not  needed  for  running  a  grist-mill  reserves  a 
quantity  of  water  sufficient  to  run  the  mill  as  it  exists  at  the 
grant,  and  different  wheels  may  be  used  if  they  do  not  require  a 
greater  quantity  of  water  to  run  them.'"  But  a  grant  of  water 
for  a  specific  purpose  restricts  the  grantee  to  the  use  of  the  water 
for  that  purpose."     If  one  have  used  flush-boards  for  a  particular 

'  Burr  V.  Mills,  21  Wend.  290.  «  White  v.  Moseley,  8  Pick.  356. 

^  French  v.  Carhart,  I  N.  Y.  9G,  112.  '  Craig  v.  Wells,  11  N.  Y.  315. 

2  Colvin  V.  Burnet,  2  Hill,  620.  «  Watts  v.  Kinney,  6  Hill,  82. 

*  Campbell  v.  McCoy,  31  Perm.    St..  »  Corning  v.  Troy,  etc.,  34  Barb.  529, 

263.  S.  c.,  39  id.  311,  40  N.  Y.  191. 

^  Babcock  V.    Utter,    1    Keyes,   115,  ^^  Dams  v.  Mimcey,S8Me.  90;  Went- 

overruling  Rericic  v.  Kern,  14  Serg.  &  worth  v.  Poor,  id.  243. 

Rawle,267;  Babcock  v.  Utter,  1  Keyes,  "  Beshon  v.  Porter,  38  Me.  289,  but 

397  ;  Cocker  v.  Coicper,  1  Cromp.,  Mees.  see  Wakeley  v.  Davidson,  26  N.  Y.  387. 
&  Rose.  418.     See  Bankart  v.  Tennant, 
L.  K.,  10  Eq.  Cas.  141. 


480  COMPLAIXT   IX   PARTICULAR   CASES.       [CII.  IV  A. 

portion  of  the  year  for  twenty  years,  he  only  acquires  a  right  to 
use  them  during  that  portion  of  the  year.'  After  one  has  built 
and  commenced  the  use  of  a  mill,  an  owner  below  him  cannot 
build  a  dam  so  as  to  cause  back-water  to  obstruct  such  mill.  JSTo 
owner  has  a  right  to  interfere  with  the  enjoyment  of  the  water 
by  another.''  One  cannot,  by  tightening  or  raising  his  dam,  raise 
the  water  therein  so  as  to  flow  his  neighbor's  land  to  a  greater 
extent  than  he  has  acquired  by  prescription.  The  question  is  not 
upon  the  height  of  tlie  dam  but  the  water.' 

One  who  places  manure  so  near  his  neighbor's  well  that  it  filters 
into  it  is  liable  for  the  injury  thus  inflicted.*  The  owner  of  a 
mill  is  not  liable  for  detaining  a  reasonable  quantity  of  water  in  his 
pond,  for  a  reasonable  time,  although  another  owner  below  be 
thereby  injured."  The  public  by  twenty  years'  use  acquire  a 
right  against  the  owner's  possession  to  use  his  premises  as  a  public 
landing  and  place  of  deposit  of  property  for  shipping."  If  one 
build  a  dam  improperly  or  negligently,  or  if  in  consequence  of 
negligence  on  his  part  it  is  carried  away,  he  is  liable  for  any 
injury  resulting  therefrom.'  The  owner  of  land  cannot  in  a  con- 
veyance thereof  reserve  the  right  to  the  owners  of  other  lands  to 
draw  water  from  a  spring  thereon.  He  may,  however,  except  so 
much  of  the  water  from  the  operation  of  his  grant.*  The  owner 
of  land  cannot  sell  the  ice  formed  on  a  stream  through  the  same,' 
although  the  cutting  thereof  will  not  be  restrained  by  injunction, 
as  there  is  an  ample  remedy  at  law.'"  A  covenant  to  draw  off 
water  six  days  in  a  year  runs  with  the  land,  and  is  binding  upon 
any  person  owning  it."  A  water-right  can  only  be  granted  as  an 
incident  to  land." 

Will." —  Although  a  court  of  equity  will  not  ordinarily  try  the 

^  Marcley  v.  Skvlts,  29  N.  Y.  346.  see  also  Cnrlmrt  v.  French,  2  N.  T. 

"^  Brown  v.  Bowen,  30  N.  Y.  519.  Leg.  Obs.  367. 

*  Stiles  V.  Hooker,  7  Cow.  266 ;  Wag-  »  Marshdl  v.  Peters,  12  How.  218 ; 
oner  v.  Jermain,  3  Denio,  306  ;  Hynds  see  3  Alb.  Law  Jour.  386,  for  an  article 
V.  Shults,  39  Barb.  600.  29  N.  Y.  346  ;  upon  property  in  ice. 

Calvin,  v.  Burnet,  2  Hill,  620.  '"  Gummiiig's  v.  Barrett,  10  Cusb.  186. 

*  Woodward  v.  Ahorn,  35  Maine,  271.       "  Morse  v.  Aldrich,  19  Pick,  449. 

5  Oould  V.  Boston,  etc.,  13  Gray,  442.  '^  Stockport,  etc.,   v.  Potter,  3  Hurl. 

«  Post  V.  Pearsall,  22  Wend.  425.  &  Colt.  300. 

''  Pixley  V.  Clark,  32  Barb.  268.  The  '^  Upon    tlie   subject,  generally,  see 

reversal  of   this  case  (35    N.  Y.  520)  Redfield  on  Wills,  Jarman  on  Wills, 

extended  the  doctrine  further,  so  as  to  Williams   on   Executors,  Willard    on 

make  him  liable  for  percolation.  Executors,  Barb.  Ch.  Prac,  Daniell's 

*  Ives  V,  Van  Auken,  34  Barb.  566  ;  Ch.  Prac,  Story's  Eq.  Jur.,  Bouv.  Diet., 


en.  IV  A.]       COMPLAINT  IN   PARTICULAR   CASES. 


481 


validity  of  a  will,  yet  where  the  validity  of  one  or  its  construction 
comes  incidentally  in  question  the  same  will  be  determined.'  A 
bill  in  equity  will  lie  to  set  aside  a  will  for  fraud,  undue  influence 
or  superstitious  terms,^  such  as  that  of  the  influence  of  a  clergy- 
man ov^er  his  parishioner.' 

So  a  suit  lies  for  the  construction  of  a  will,*  but  the  complaint 
must  allege  that  the  testator  left  property,  and  show  what.'  So  a 
bill  lies  to  establish  and  prove  a  lost  will,'  to  establish  a  will  of 
real  estate  as  against  an  heir,''  An  action  to  obtain  a  judicial 
construction  of  a  will  can  only  be  maintained  by  an  executor  or 
administrator  with  the  will  annexed,'  but  if  the  objection  is  not 
taken  at  the  trial  it  cannot  afterward  be  insisted  upon.'  So  a 
bill  lies  to  determine  who  was  the  legatee  intended  by  the  tes- 
tator where  the  legatee  is  not  sufficiently,  or  is,  in  some  respects, 
improperly  described.'" 

Witness."  —  A  witness  who  has  been  properly  subpoenaed  is 
liable  to  an  action,  although  the  cause  was  not  called  or  a  jury 


Bouv.  Inst.,  Broom's  Com.,  Jacob's  Law 
Diet.,  Kerr  on  Frauds  and  Mistake,  1st 
Am.  ed.  ;  in  addition  to  the  citations 
in  the  index,  see  pp.  170,  273-280,  354, 
221-222.  Smith's  Man.  of  Eq.  1st  Am. 
ed. ;  in  addition  to  citations  in  index, 
Bee  pp.  17,  256-7.  Roper  on  Leg., 
Stey)]ien's  Com.,  Kent's  Com.,  Bl.  Com., 
Smith's  Real  and  Pers.  Prop.,  Washb. 
Real  Prop.,  Willard's  Eq.,  Willard's 
Real  Prop.,  Adams's  Eq.,  Williams  on 
Pers.  Prop.,  Williams  on  Real  Prop. 

'  Mlddleton  v.  Sherhiirne,  4  Y.  &  C. 
Exch.  Eq.  358,  593,  explaining  Kerrick 
V.  Brandy,  7  Brown's  Pari.  Cases,  437, 
and  Andreics  v.  Poim/n,  2  id.  504; 
Bowers  v.  Smith,  10  Paige,  193 ;  see 
Allen  V.  McPhe.rson,  1  Phillips's  Ch. 
133 ;  Harrk  v.  Clark,  7  N.  Y.  242. 

2  Middleton  v.  Slierburne,  4  Y.  &  C. 
Exch.  Eq.  358,  593;  Carron,  etc.,  v. 
Hunter,  L.R.,1  Scotch  App.  362,  Moak's 
Notes  to  Clarke's  Ch.,  marg.  p.  97. 

3  Middleton  v.  Sherhu.rne,  4.  Y.  &  C. 
Exch.  Eq.  358,  593,  Moak's  Notes  to 
Clarke's  Ch.  97,  marg.  p. 

*  Hunter  v.  Hunter,  17  Barb.  25  ;  this 
case  contains  a  precedent  for  a  com- 
plaint in  such  cases.  Tucker  v.  Tucker, 
5  N.  Y.  408  ;  Smith  v.  Smith,  4  Paige, 
271  ;  Harris  v.  Clark,  7  N.  Y.  242  ; 
Spencer  v.  Spencer,  3  N.  Y.  Leg.  Obs. 
162,  11  Paige,  159. 

61 


6  WalratJi  v.  Handy,  24  How.  353. 

^  Moak's  Notes  to  Clarke's  Ch.  pp. 
133^,  marg.  p.  132 ;  Sprigge  v.  Spriggs, 
L.  R.,lProb.,  &Dlv.  608. 

'  Colclotigh  V.  Boyse,  6  H.  of  L.  Cas.  1, 
3  De  Gex,  McN.  &  Gord.  817,  Smith's 
Man.  of  Eq.  409,  Am.  ed.,  2  Story's  Eq. 
Jur.,  i^i^  1447-  ;  Stevens  v.  Brooks, 
Clarke's  Ch.  130,  was  not  a  bill  to  es- 
tablish a  will  as  against  the  heir,  but 
to  prove  a  will  generally,  and  have  it 
recorded  as  a  will  of  real  estate. 

«  Hohart  College  v.  Fitzhugh,  27  N.  Y. 
133  ;  Post  V.  Hover,  33  id.  602 ;  Wal- 
rath  V.  Handy,  24  How.  353  ;  but  see 
Bowers  v.  Smith,  10  Paige,  193  ;  Walrath 
V.  Handy,  24  How.  353 ;  Bowers  v. 
Brower,  9  N.  Y.  Leg.  Obs.  196,  Ct.  App. 

'  Tucker  v.  Tucker,  5  N.  Y.  409; 
Smith  V.  Kay,  7  H.  of  L.  Cas.  757; 
Bowers  v.  Brower, 9  N.Y.  Leg.  Obs.  196. 

'0  Smith  V.  Sinith,  1  Edw.  Ch.  189,  4 
Paige,  271,  Willard's  Eq.  AM.etseq., 
2  Rod.  Leg.  164,  id.  1450  ;  2  Williams's 
Ex'rs,  1035-1041,  1  Jarman  on  Wills, 
372  ;  Brake  v.  Brake,  8  H.  of  L.  Cas. 
172;  Matter  of  Rickit's  Will,  11  Hare, 
299. 

"  Upon  the  liability  of  witnesses, 
generally,  see  1  Chit.  PI.  139,  4  Conw. 
Rob.  Pr.  643-8. 


482  COMPLAINT   IN   PARTICULAR   CASES.       [CII.  IV  A. 

impaneled  therein.*  In  an  action  against  a  witness  the  plaintiff 
is  required  to  show  some  damages  f  but,  it  seems,  he  need  not 
show  he  had  a  valid  cause  of  action.''  It  is  sufficient  to  show  that 
the  defendant  was  a  material  witness  for  the  plaintiff,  and  that  his 
absence  caused  the  plaintiff  injury.^  It  must  appear  that  the 
failure  to  try  the  cause  was  on  account  of  the  absence  of  the 
witness.*  In  an  action  against  a  defaulting  witness,  the  plaintiff 
must  show  that  the  witness  was  duly  subpoenaed  and  paid  or  ten- 
dered his  fees.  It  is  not  sufficient  to  show  that  the  witness  waived 
service  and  the  payment  of  his  fees.^  The  party  must,  at  his 
peril,  pay  his  witness  his  daily  fees,  including  Sundays,  in  advance, 
or  the  witness  is  not  liable  for  leaving  court  and  not 'appearing  as 
a  witness."  A  mere  failure  to  object  is  no  waiver.'  To  entitle 
a  party  to  recover  against  a  defaulting  witness,  he  must  allege 
and  prove :  1.  That  an  action  was  pending  in  which  the  defend- 
ant might  have  been  a  witness.  2.  That  a  subpoena  therein  was 
issued,  to  be  served  upon  him.  3.  That  it  was  served  by  deliver- 
ing to  defendant  personally  a  ticket  containing  the  substance  of 
the  writ,  showing  him  at  the  same  time  the  original,  and  paying 
the  fees  required  to  be  paid  by  law,  to  wit,  eight  cents  per  mile  from 
the  place  of  residence  of  the  witness  to  the  place  of  holding-  the 
court,  and  fifty  cents  for  one  day's  attendance.  4.  That  fifty 
cents  was  paid  to  the  witness  for  each  day's  attendance  after  the  first. 
5.  That  he  was  a  material  witness.  6.  That  he  was  called  when 
the  cause  was  reached  on  the  calendar,  and  did  not  appear.  7. 
The  damages  sustained  by  the  non-attendance  of  the  witness.*  A 
defaulting  witness  is  not  liable  to  an  action  if  he  had  a  reasonable 
excuse  for  not  attending;*  or  if  he  was  subpoenaed  so  short 
a  time  before  he  was  required  to  appear  that  he  could  not,  by 

'  Bnrroio  v.  Humphreys,  3  Barn.  &  ^  Robinson  v.  Trull,  4  Cush.  249.    In 

Aid.  598   5  Eng.   C.  L.,  disapproving  New  York,  it  seems,  the  witness  may 

Blond  V.  Siodfford,  Peake's  N.  P.  85.  expressly  waive  payment  of  his  fees. 

See,  also,  Ilurd  v.  Sioan,  4  Denio,  77,  2  so  as  to  give  a  cause  of  action  for  non- 

Tidd's  Pr.,  808-9.  attendance.     Surd  v.  Swan,  4  Den.  75. 

2  Conling  v.  Coxe,  6  C.  B.  (60  Eng.  «  Miisrott  v.    Range,    27    How.   85  ; 

C.  L.)  703.  Courtney  v.  Baker,  3  Denio,  27 ;  Hurd 

2  Masterson  v.  Judson,  8  Bing.  224,  v.  Siran,  4  Denio,  75. 

21    Eng.   C.   L. ;    Mullett  v.   Hunt,   1  '  Ilurd  v.  Swan,  4  Denio,  75. 

Cromi>.   &   Mees.   752,   707 ;   Davis  v.  «  MuscMt  v.   Runge,    27   How.    86 ; 

Lovdl,  4  Mees.  &  Welsh.  678  ;  Needham  Courtney  v.  Baker,  3  Den.  27  ;  Hurd 

V.  Fraser,  1  Man.  Gr.  &  Scott,  815,  50  v.  Swan,  4  id.  75. 

Eng.  C.  L.  '  Heermans  v.  Williams,  11  Wend. 

*  Hurd  V.  Swan,  4  Denio,  75.  63G. 


en.  IV  A.]       COMPLAINT  IN   PARTICULAR  OASES.  483 

availing  himself  of  the  ordinary  modes  of  conveyance,  attend 
without  traveling  Sunday.'  In  an  action  against  a  witness  for 
failing  to  produce  a  paper  pursuant  to  a  duces  tecum  it  is  sufficient 
to  allege  the  issuing  and  proper  service  thereof,  etc.,  as  in  other 
cases,  and  that  the  defendant  could  and  might,  in  obedience  to  the 
said  writ  of  subpoena,  have  produced  at  the  trial  the  paper  desig- 
nated therein,  and  that  he  had  no  lawful  or  reasonable  excuse  or 
impediment  to  the  contrary.''  The  action  for  the  penalty  must 
be  brought  in  the  county  where  the  subpoena  was  served ;  other- 
wise for  the  damages.'  A  witness  is  not  liable  to  an  action  for 
falsely  giving  testimony  whei*eby  a  party  is  injured  ;*  nor  for 
slander  uttered  as  witness ;"  nor  can  he  be  convicted  of  murder 
though  by  perjury  he  cause  an  innocent  man  to  be  executed." 

Work  and  Lal)or/  —  On  an  oifer  to  employ  plaintiff  as  com- 
mander of  a  vessel  for  a  trading  voyage  at  the  rate  of  fifty  pounds 
'per  month,  and  an  acceptance  thereof,  at  a  fixed  pay  of  lifty 
pounds  per  month,  it  was  held  that  this  was  not  an  entire  contract 
for  the  whole  voyage,  but  one  which  gave  plaintiff  a  right  of 
action  for  the  salary  as  each  month  arose,  and  which,  when  once 
vested,  was  not  subject  to  he  lost  or  divested  by  the  plaintiff's 
desertion  or  abandonment  of  the  contract.* 

Although  where  the  contract  is  to  work  a  definite  time  without 
any  agreement  to  pay  until  the  expiration  thereof,  it  must  be 
performed  or  no  recovery  can  be  had.  As  where  an  actor  agreed 
to  play  for  four  weeks,  but  the  agreement  was  modified  so  that 

'  Wilkie  V.  Chadwich,  13  Wend.  49.  ante,   title     "  Master    and    Servant ;" 

'  Atrtey  v.  Long,  9  East.  473,  S.  C,  Parsons  on   Cont.,   Cowen's   Treatise, 

Msiprius,!  Camp.  14.  Kingsley's   ed.,  Wait's  Law  and  Pr., 

*  Wilkie  V.  Chadicick,  13  Wend.  49.  Reeve's  Dom.  Rel.,  Addison  on  Cont., 

■*  Grover  v.   Bradenburg,  7  Blackf.  Smith's  Master  and  Servant,  3  Kent's 

(Ind.)    284;    Bunlop    v.  'Glidden,    31  Com.    248-26B,    Broom's    Com.,    title 

Maine,  435 ;  Smith  v.  Lewis,  3  Johns.  "  Master  and  Servant,"  Broom's  Com. 

157 ;  Davenport  v.  Simpson,  Cro.  Eliz.  on   Com.   Law,   same   title,  Stephen  a 

520  ;  Eyres  v.  Sedgrcick,  Cro.  Jac.  601  ;  Com. ,     same     title,     2     Conw.     Kob. 

Coxe  V.  Smith,  1  Lev.  119,  was   for  Pr.,  title    "Servant,"    id.    411-414,  3 

wrongfully  procuring  plaintiff  to  be  Conw.    Rob.   Pr.,   4    Conw.    Rob.    Pr., 

turned  out  of  office  by  means  of  a  false  Smith's  Man.  Com.  Law,  title  "  Master 

affidavit.      It    probably   is    not    good  and  Servant,"  Schouler's  Dom.  Rel. 
authority.  *  Taylor  v.  Laird,  1  Hurl.  &  Norm. 

5  4  Conw.  Rob.  Prac.  897-899,  Town-  266,  arid  see  the  cases  cited  in  note  to 

send  on  Libel,  and  Slander,  §  224,  Add.  Johns,  ed. ;  but  see  Jenkins  v.  Wheeler, 

on  Torts,  3d  Eng.  ed.,  799.  4  Trans.  App.  457-462,  3  Keyes,  652- 

«  Ecx  V.  McDaniels,  1  Leach,  4th  ed.,  658,  and   numerous   authorities   there 

44.  cited,  modifying  the  judgment  below 

'  Upon   the  subject,  generally,   see  in  4  Rob.  573. 


484  COMPLAINT  IN   PAKTICULAE   CASES.       [CH.  lY  A. 

he  was  to  play  two  weeks,  and  after  a  certain  time  return  and  play 
two  more ;  but  after  playing  the  first  two  he  refused  to  return  to 
play  the  last.*  So  where  one  was  employed  for  a  year  without 
any  stipulation  as  to  when  he  should  be  paid  for  his  services  or 
expenses.' 

Where  a  servant  agrees  to  work  one  month,  and,  if  satisfied, 
six  months,  he  is  bound  to  determine  at  the  end  of  the  mouth 
whether  he  will  work  the  six  months,  and  if  he  remain  and  work 
after  the  expiration  of  the  first  month  he  elects  to  work  the  six, 
and  cannot  recover  if  he  leaves  the  master's  employment  without 
justifiable  cause.'  If  a  servant  hire  for  a  definite  period,  with 
the  privilege  of  leaving  if  dissatisfied,  and  quit  before  the  expira- 
tion of  the  time  without  claiming  to  be  dissatisfied,  but  on  the 
ground  that  he  has  other  business  to  attend  to,  he  is  not  entitled 
to  recover  for  what  he  has  done.*  Otherwise  if  there  be  a  hona 
fide  disagreement.* 

If  the  agreement  be  that  either  party,  if  dissatisfied,  may  put 
an  end  to  the  contract,  either  may  do  so  without  informing  the 
other  of  the  grounds  of  dissatisfaction,  and  without  in  fact  having 
any  satisfactory  reason  for  such  dissatisfaction.'  A  woman  who, 
believing  herself  to  be  the  wife  of  a  married  man  who  has  a  for- 
mer wife  living,  cannot,  on  discovering  that  fact,  recover  for  work 
and  labor  done  during  the  existence  ot  the  relation  of  husband 
and  wife.'  The  party  himself,  however,  would,  if  living,  be 
liable  in  an  action  of  fraud  for  fraudulently  procuring  the  plain- 
tifi'  to  marry  him,  if  he  procured  the  marriage  by  fraudulently 
and  aflirmatively  representing  that  he  was  legally  divorced  from 
liis  former  wife ;  ^  but  such  action  does  not  survive  against  the 
husband's  representatives."  So  if  the  husband,  under  a  claim  to 
be  entitled  to  the  wife's  property  as  such,  receive  money  when 
the  marriage  is  void,  that  may  be  recovered  back." 

'  Plncide  v.  Burton,  4  Bosw.  512.  '  Gropsey  v.  Sweeney,  7  Abb.  129,  27 

2  Oviatt  V.  Hughes,  41  Barb.  541.  Barb.  810;  but  see  2  Bisli.  Mar.  and 

»  Peters  v.  Whitney,  23  Barb.  24.  Div.,  4th  ed.,  §  696 ;  2  Pars,  on  Cont., 

^  MoneM  v.  Burns,  4  Den.  121.  5tli  ed.,  46,  note  j. 

5  Ontes  V.  Davenport,  29  Barb.  160  ;  ^  Blossom  v.  Barrett,  37  N.  Y.  434. 

see,  also.   Hart  v.  Hart,  22  id.  606 ;  »  Orim  v.  Cairs,  etc.,  31  Penn.   St. 

WctterwuJgh  v.  Knickerbocker,  etc.,.  2  533;  George  v.  Van  Home,  9  Ba-vh.  ^23. 

Bosw.  381.  '"  Has.scr  v.  Wallis,  1  Salk.  28, 11  Mod, 

«  Rossiter  v.  Cooper,  23  Vt.  (8  Wasbb.)  146 ;  2  Qreenl.  Ev.,  fc^  120. 

523. 


CII.  IV  A.]       COMPLAINT  IN   PAETICULAK   CASES.  485 

If  wrongfully  discharged,  a  servant  may  recover  tlie  amount 
3ontracted  to  be  paid  him  for  his  services,  if  he  show  he  was 
ready  and  willing  to  fulfill  his  contract.*  Telling  him  he  may 
leave  is  a  sufficient  discharge,  if  the  jury  find  the  employer 
thereby  intended  the  servant  to  understand  his  services  were  no 
longer  desired.^  But  the  defendant  may  show,  in  diminution  of 
damages,  that  the  plaintiff,  during  the  stipulated  time,  had  been 
engaged  in  other  business  from  which  he  had  realized  or  should 
have  realized  compensation.'  And  it  is  the  duty  of  the  servant 
to  use  diligence  in  endeavoring  to  find  work.*  A  party  wrong- 
fully discharged  has  three  remedies,  either  of  which  he  may  pur- 
sue at  his  election.  1.  He  may,  the  moment  the  contract  is 
broken,  bring  a  special  action  to  recover  the  damages  arising  from 
the  breach.  2.  He  may  treat  the  contract  as  rescinded,  and 
immediately  sue  on  the  quantum  meruit  for  the  work  actually 
performed ;  or,  3.  He  may  wait  until  the  determination  of  the 
period  for  which  he  was  hired,  and  claim  as  damages  the  wages 
agreed  to  be  paid  by  the  contract.  But  an  action  upon  one 
theory,  and  judgment  upon  it,  will  operate  as  a  bar  to  any  further 
action.^  In  a  contract  to  do  certain  specified  work,  instead  of  to 
work  for  a  definite  period,  the  rule  that  the  contract  price  is 
prima  facie  the  rule  of  damages  does  not  apply  ;  °  but  one  who 
agrees  to  carry  freight  to  a  particular  place  may  insist  upon  doing 
so  and  receiving  the  freight  agreed  upon.'  A  contract  to  change 
the  terms  of  a  prior  contract  of  employment  after  it  has  been 
commenced  cannot  be  found  from  a  proposition  from  one  party  to 
do  so  and  a  refusal  to  assent  thereto  by  the  other.*  Under  an 
agreement  to  work  for  one  year,  payable  monthly,  the  laborer 
may  &l  any  time  demand  payment  for  all  the  months  which  have 

'  Costigan  v.  Mohawk,  etc.,  2  Denio,  237,  4th  ed.,  note  3;   see    Bagley    v. 

609 ;  Huntington  v.  Ogdensburgh,  etc..  Smith,  10  N.  Y.  489. 
33   How.   41(3 ;  see  note   7   Am.   Law        ^  Enimens  v.  Elderton,  13  C.  B.  (77 

Re?.  N.  S.  148 ;  Emmens  v.  Eklerton,  Eng.  G.  L.)  507  ;  4  H.  of  L    Cas.  ()34, 

13CB.  (77Eng.   C.  L.)  495,  H.'of  L;  645,  646;  Chamberlain  v.  Morgan,  b8 

Thompson  v.  Wood,  1  Hilt.  93  ;  Becker  Feun.  Si.  168.  „i  -d    i    ooi 

V.  Hassell,  26  How.  538.  ^  Colburn  v.  Woodworth,  31  Barb.  d«l ; 

2  Pelouze  V.  Stewart,  1  N.  Y.  Leg.  Huntington  v.  Ogdensburgh,  etc.,  7  Am. 
Obs.  170.  Law  Reg.  N.  S.  143. 

3  Costigan  v.  Mohawk,  etc.,  2  Denio,        "  Durkee  v.  Mott,  8  Barb.  423  42o. 
609 ;  Huntington  v.  OgdensMirgh,  etc.,        '  Ellis  v.  Willard,  9  N.  Y.  o29 ;  .-1.-!^. 
33  How.  416  ;  note  7  Am.  Law.  Reg.  burner  v.  Bakhen,  7  id.  262,  26b. 

N.  S.  148 ;  Sedg.  on  Dam.  212,  marg.p.        »  Alcott  v.  Boston,  etc.,  9  Cush.  17. 


486  COMPLAINT  IN   PAETICULAE   CASES.       [CH.  17  A. 

elapsed,  altliough  lie  have  neglected  to  demand  payment  monthly.* 
And  if  the  employer  pay  monthly,  it  is  evidence  that  the  agree- 
ment was  that  he  should  do  so.'' 

Under  an  agreement  to  do  certain  work  or  pay  a  certain  sum, 
plaintiif',  in  order  to  recover  the  money,  must  show  defendant 
elected  to  pay  money,  or  that  plaintiff  demanded  the  work  and 
defendant  refused.'  Although  an  agreement  by  A  to  work  for 
JB  cannot  be  assigned  so  as  to  compel  A  to  work  for  C,  yet  one  to 
work  for  B  or  bearer  may  be.*  So  if  A  agree  to  work  for  B  the 
latter  is  not  obliged  to  receive  the  services  of  another,  nor  if  one 
contract  for  the  use  of  a  coach  from  A  is  he  obliged  to  employ  it 
from  C.'*  If  a  surety  promise  the  principal  shall  pay  for  work, 
the  workman  cannot  recover  of  the  surety  unless  it  appear  that 
he  knew  of  the  agreement  by  the  surety  before  the  performance 
of  the  labor."  Where  A  wrote  to  B  saying  he  would  do  certain 
work  for  him,  and  adding  "  the  amount  of  pay  I  leave  to  you," 
if  B  refuse  to  fix  a  proper  amount  A  may  recover  what  B,  acting 
honajide,  should  have  fixed;'  although  no  action  would  lie  until 
B  had  been  applied  to  to  fix  the  amount  of  compensation  and 
refused  ;*  but  where  the  agreement  was  to  pay  such  remuneration 
as  should  be  deemed  right,  it  was  held  the  employer  was  the  sole 
judge  as  to  whether  or  not  he  would  pay  any   thing.' 

Where  it  is  agreed  that  a  third  party  shall  fij:  the  amount  of 
compensation  no  action  lies  until  it  is  fixed  by  him."  Under  an 
agreement  to  do  work  to  the  satisfaction  of  a  third  person,  the 
plaintiff  must  aver  and  prove  that  it  was  done  to  his  satisfaction, 
and,  if  payment  is  to  be  made  on  the  production  of  his  certificate, 
that  such  certificate  was  given  and  produced. ''     Unless  the  arbi- 

>  White  V.  Atkins,  8  Gush.  367.  "  Butler  v.   Tucker,  24  Wend.  447; 

*  Justition  V.  Crttwford,  35  How.  465.  Smith  v.  Briggs,  3  Den.  73  ;  Smith  v. 
2  Nelifoii  V.  Clough,  3  Cush.  463.  Bradtj,  17  N.  Y.  175,  176  ;  Barton  v. 
■•  ILntkcll  V.  Blair,  3  Cush.  534.  Hermu/nce,  11   Abb.  N.  S.  378  ;  Adams 

*  llobmn  V.  Drummond,  3  Barn.  &  v.  Mayor,  4  Diier,  295 ;  Dustan  v. 
Ad.  303  (22  Eng.  C.  L.)  Ma  Andrew,  4t   N.   Y.   72  ;   Stewart  v. 

®  Ball  V.  Newton,  7  Cash.  599.  Keicltas,  36  id.  383 ;  Lamb  v.  Lathrop, 

■"  Bryant  v.  Flight,  5  M.  &  W.  1 14 ;  see,  13  Wend.  95  ;  Martin  v.  Leggctt,  4  E. 

also,  Butler  v.  Tucker,  24  Wend.  447.  D.  Smith,  355 ;  Kerr  on  Inj.  95,  96,  1st 

•*  Owen  V.  Bowen,  4  Carr.  &  P.   93  Eng.  ed. ;  Jones  v.  17i,e  President,  etc., 

(19  Eng.  C.  L.)  L.    R.,    6     Q.     B.    115 ;     Williams    v. 

'  Taylor   v.    Brewer,    1    Maule     &  Edwards,  2   Simons,    78 ;     Rogers   v. 

Selw.  290.  Uoqan,  53  Me.  306  ;  Wyckoff  v.  Meyers, 

'0  Morgan  v.  Birnie,  9  Bing.  672  (23  44  N.  Y.  143.     See  Sherman  v.  Mayor 

Eng,  C.  L.);   Barton  v.  Hermance,  11  1  id.  316  ;  4  Am.  Law  Times,  U.  S.  Ct 

Abb.  N.  S.  378.  Rep.  6. 


CH.  IV  A.]       COMPLAINT  IN   PARTICULAR   CASES.  487 

trator  decline  to  act  at  all ;'  or  act  unreasonably  or  in  bad  faitli ;" 
or  the  adverse  party  decline  to  allow  bini  to  act ;  or  if  in  bis 
employ  to  procure  bim  to  act  after  request/ 

If  tbe  plaintiff  procure  tbe  arbitrator  to  refuse  to  act  be  cannot 
recover  ;*  tbe  plaintiff  may  recover  tbe  amount  named  by  tbe 
arbitrator'  witbout  furtber  proof  of  tbe  doing  of  tbe  work,' 
provided  botb  parties  bave  notice  of  tbe  time  and  place  at  wbich  be 
intends  to  act,  and  an  opportunity  to  be  beard/  If  it  be  apparent 
from  tbe  contract  tbat  sucli  notice  and  bearing  were  not  contem- 
plated, tbe  decision  of  tbe  arbitrator  is  final  witbout  tbe  same.* 
Wbere  tbe  person  to  give  tbe  certificate  is  in  tbe  employ  of  one 
party,  tbat  party  contracts  witb  tbe  otber  tbat  sucb  tbird  person 
will  do  bis  duty  and  act  fairly.*  Wbere  a  party  agrees  to  do 
certain  work  and  sucb  extra  work  as  may  be  ordered  by  a  certain 
time  in  default  of  a  certain  sum  as  damages  eacb  day,  and  tbat 
tbe  certificate  of  a  tbird  person  sball  be  final,  be  must  complete 
tbe  work  witbin  tbe  time  specified,  altbougb  tbe  extra  work 
ordered  rendered  it  impossible  for  bim  to  do  so.  It  was  bis  own 
folly  to  so  contract."  So  a  contract  may  provide  tbat  if  tbe  con- 
tractor do  not  proceed  as  rapidly  as  a  tbird  person  sball  deem 
proper  it  may  be  terminated,  and  sucb  tbird  person  sball  fix  tbe 
amount,  if  any  tbing,  to  be  paid  for  wbat  is  done,  or  tbe  employer 
'  may  complete  wbat  is  undone  at  tbe  expense  of  tbe  employee, 
wbo  is  bound  to  pay  sucb  expense,"  unless  be  was  delayed  from 
performing  by  tbe  act  or  negligence  of  tbe  otber  party  ;'^  but  an 
arbitrator  can  only  settle  sucb  points  as  are  expressly  agreed  to 
be  referred  to  bim,  and  bis  decision  upon  otber  points  will  not 
be  binding  ;'*  be  cannot  fix  tbe  price  of  work  not  embraced  witbin 

»  Smith  V.  Brady,  17  N.  Y.  176.  «  Heron  v.  Dmis,  3  Bosw.  336. 

»  Thomas  v.  Fleury,  26    N.  Y.  26;  ^  Baiterhury  v.  Vyse,2  Hurl.  &  Colt. 

Martin  v.  Leggett,  4  E.  D.  Smith,  255  ;  46,  note  Johns.  Am.  ed. 

Batterhnry  v.  Vyse,   2  Hurl.    &  Colt.  '"  Joues  v.   President,  etc.,   L.  II.,   6 

42 ;  Wyckoffv.  Myers,  44  N.  Y.  145.  Queen's  Bench,  115. 

3  McMahon  v.  Erie,  eU.,  20  N.  Y.  "  Bobertf,  v.  Bury,  etc.,  L.  R.,  5  C.  P. 
468;  Dustan  v.  McAndrew,  10  Bosw.  310;  Fhelan  v.  A.  &  S.  R.  E.,  1  Lans. 
137,  44  N.  Y.  73.  258  ;  Hennessy  v.  Farrell,  4  Cush.  267 ; 

4  Steicart  v.  Cuyler,  17  Barb.  482.  Faunce  v.  Burk,  16  Penn.  St.  478,  479 ; 
6  McLityre  v.  Morris,  14  Wend.  90.  Pauling  v.  The  Mayor,  etc.,  lU  i:.N.i:h. 
«  Adams    v.    Mayor,  4    Duer,    295 ;    753 ;  but  see  Ranger  v.  Great  Western, 

Wyckoffv.  Myers  44  N.  Y.  143.  etc., 5  House  of  Lords  Cases,  72. 

■>  McMahon   v.  'Erie,  etc.,  20  N.  Y.  ''^  Roberts  v.  Bury,  etc.,  L.  R.,  5  C.  P. 

463  ;  Collins  v.  VanderbiU,  8  Bosw.  313,  310,  325. 

320 ;  but  see  Dustan  v.  McAndrew,  10  "  Roberts  v.  Bury  etc.,  L.  R.    5  C.  P. 
id.  130,  44  N.  Y.  72. 


488  COMPLAINT  IN   PARTICULAR   CASES.       [CH.  IV  A. 

the  contract.'  If  a  contractor  with  a  railway  company  agree  to 
abide  by  the  decision  of  an  engineer  he  must  do  so,  although  the 
engineer  be  at  the  time  a  stockholder  in  the  company,''  or  be 
the  party  in  interest '  (although  a  judge  of  a  court  of  law  could 
not  have  sat  in  such  a  case  *);  otherwise  if  the  arbitrator  be  a  party 
in  interest  and  that  fact  be  unknown  to  the  contractor.^  If  an 
architect,  whose  decision  is  made  final  by  the  terms  of  a  contract, 
be  guilty  of  unfair  conduct  a  court  of  equity  will  relieve  the  party 
injured  thereby.' 

Where  one  woi'ks  for  another,  under  promise  that  the  employer 
will  remember  him  in  his  will,  he  may  recover  if  nothing  be  left 
him  by  will,'  but  he  cannot  maintain  an  action  during  the  life- 
time of  the  employer.*  If  any  thing  be  left  him  by  will  he  can- 
not recover,  although  the  legacy  be  very  inadequate  compensation 
for  the  services.'  If  one  work  for  another,  under  an  agreement 
that  he  shall  be  paid  by  a  devise  of  land,  he  can  only  recover  the 
value  of  his  services,  regardless  of  the  value  of  the  land.'" 

Ordinarily,  on  the  performance  of  work  for  one  person  by 
another,  and  his  acceptance  thereof,  tiie  law  implies  a  promise  to 
pay  therefor."  If,  however,  the  relation  of  parent  and  child  exists 
between  the  parties  the  law  precludes  the  idea  of  an  intention  on 
the  part  of  either  to  pay  or  be  paid.  A  child  cannot  recover  for 
services  rendered  the  father  without  express  proof  of  a  promise 
by  the  father  to  pay  therefor,  or  of  an  expectation  on  his  part  to 
do  so,  nor  can  a  father  recover  for  supporting  his  child  without 
the  same  proof.  There  must  be  a  mutual  understanding  to  pay 
wages  on  the  one  hand  and  to  pay  for  support  on  the  other." 

310 ;  Crowfoot  v.  London,  etc.,  2  Cromp.        '  Eaton  v.  Benton,  2  Hill,  576  ;  Eobin- 

&  Mees.  637.  son  v.  Raynor,  28  N.  Y.  496,  497. 

'  Hart  V.  Lanman.  29  Barb.  410.  i"  Erhen  v.  Lorillard,  19  N.  Y.  299. 

^  Ranger  v.  Great  Western,  etc.,  5  H.       "  yfoore    v.    Moore,    21    How.    22.S  ; 

L.  Cases,  72.  Hutchinson  v.  Hutchinson,  3  N.  Y.  317, 

3  Bustan  v.  McAndrews,  44  N.  Y.  72.  318. 

*  Dimes  V.  Grand,  etc.,  3  H.  L.  Cases,  '*  Livingston  v.  Ackeston,  5  Cow.  .532, 
759,  2  McN,  &  Gord.  285,  Moak'a  Notes  533  ;  Sharp  v.  Gropsey,  11  Barb.  224- 
to  Clarke's  Ch.  188,  ed.  1869.  226,  228  ;  Williams  v.  Hutchinson,  5  id. 

»  Kimberly  v.  Dick,  1  Eng.  511,  L.  R.,  122, 125,  3  Corast.  312,  1  Pars,  on  Cont. 

13  Eq.  1.  257,  id.  530,  531 ;  Maltby  v.  Harwood, 

^  Pauly  X.    Turnhull,    3    Giff.    70;  12  Barb.  473 ;  IFiWiam  v.  i^wA,  2  id. 

Ormes  v.  Beadd,  2  id.  166.  208  ;  Rohiiison  v.  Cushman,  2  Den.  149, 

^  Jacohson  v.  La  Grange,  3  Johns.  199.  150,  155  ;  Felter  v.  Felter,  33  Penn.  St. 

*  Patterson  v.  Patterson,  13  Johns.  50 ;  Mosteller's  Appeal,  30  id.  473 ; 
379  ;  Robinson  v  Raynor,  28  N.  Y.  496,  Moore  v.  Moore,  21  How.  211,  222, 224  ; 
497.  Conger  v.  Van  Aernum,  43  Barb.  602  • 


CH.  IV  A.]       COMPLAIISTT   IIST   PAETICULAR   CASES.  489 

"Where,  after  the  death  of  a  father,  his  executors  gives  one  of  his 
children  a  note  for  services,  for  which  no  express  promise  to  pay- 
is  proven,  such  note  is  without  consideration  and  void,  and  if  the 
executors  pay  it  the  amount  thereof  cannot  be  allowed  them  on 
their  settlement  of  accounts.'  Unless  the  parties  intended  the 
one  to  pay  and  the  other  to  be  paid,  no  ex  post  facto  charges  can 
be  made."  So  where  one  boards  another  from  charitable  motives 
without  any  intention  of  remuneration,  he  cannot  afterward 
charge  for  such  maintenance  ;^  or  if  he  go  a  journey  to  go  bail 
for  a  friend,  because  he  does  it  as  his  friend  and  as  an  act  of  kind- 
ness, and  does  not  undertake  the  journey  as  work  or  labor.*  But 
the  keeper  of  a  county  poor-house  is  bound  to  pay  a  pauper  for 
labor  done  for  him  if  he  agree  to  pay  him  therefor.^  The  rule  is 
the  same  where  the  relation  of  parent  and  child  is  assumed  by 
and  exists  between  parties,  as  where  one  adopts  a  child ;°  or  takes 
the  child  of  a  relative  to  live  with  him,  where  there  is  no  obliga- 
tion on  the  part  of  the  child  or  its  parent  to  pay  for  sup]>ort  and 
no  liability  to  pay  for  its  labor/  So  no  promise  will  be  implied 
between  relatives.*  The  relation  of  parent  and  child  is  established 
by  evidence  that  the  parties  lived  together  and  recognized  by 
their  acts  the  existence  of  such  a  relation.*  If  there  was  an 
understanding,  express  or  implied,  that  the  child  should  be  paid 
for  services,  he  may  recover,"  unless  the  same  be  satisfied  by  a 
devise  or  bequest ; "  but  where  the  father,  after  the  son  had  been 
in  his  employ  many  years,  declared  to  witnesses  that  he  intended 
to  pay  his  son  for  his  work,  such  declarations  are  not  evidence  of 
the  existence  of  a  contract  for  wages  between  the  parties,  and  it  is 
error  to  permit  the  jury  to  infer  a  contract  from  such  declarations." 

Brush  V.  BlamJiard,  18  111.  46 ;  Seawy        «  Berr/in  v.  Wemple,  30  N.  Y.  319. 

V.  Semey,  37  N.  H.  125  ;  Hudson  v.  Lutz,        «  Andrus  v.  Fisher,  17  Vt.  556. 

5  Jones  (N.  C.)  217  ;  Qillett  v.  Comp,        ■>  Duffy  v.  Duffy,  2  Am.  L.  Reg.  (N. 

27  Mo.  541  ;   Davis  v.  Goodenough,  1  S.)  434,  Sup.  Ct  Penn. 

Wms.  (Vt.)  715  :  Lutz  v.  Frcy,  19  Penn.        »  Boweii  v.  Boicen,  2  Bradf.  336. 

366  ;  Hussee  v.  Boundtree,  Busbee,  110 ;        »  Balton  v.  BetMehem,  20  N.  H.  505. 

Resor  v.  JoJinson,  1  Carter,  100.  '"  Martin  v.  Wright,  13  Wend.  460  ; 

'  Dye  V.  Kerr,  15  Barb.  445  ;  Shepard  BoUnson  v.  Raynor,  28  N.  Y.  496,  497 ; 

V.  Young,  8  Gray,  153.  Conger  v.  Van  Aernam,  43  Barb.  602 ; 

«  Williams    v.  Hutchi7ison,  5   Barb.  Adams  v.  Adams,  23  Ind.  50. 
124,  3  Coinst.  317,  318  ;  Moore  v.  Moore,       "  Rose  v.  Rose,  7  Barb.  174  ;  Eaton  v. 

21  How.  223.  Benton,  2  Hill,  576. 

3  University  v.  McNiel,  2  Ired.  605.  '^  llertzog  v.  Hertzog,  29  Penn.  St.  465  ; 

"  Reason  v.  Wiedman,  1  Carr  &  Payne,  Lobinson  v.  Raynor,  36  Barb.  128.    The 

254  (12  Eug.  C.  L.  Rep.)  reversal  of  tliis  ca:5e   by  the  court  of 

62 


490  COMPLAIJNfT   IX   PAllTICULAR   CASES.        [CH.  IV  A. 

Otlierwise  if,  after  services  are  rendered  under  such  declara- 
tions, the  employer  give  the  employee  a  note  for  a  definite  sum 
therefor.'  Sickness  of  the  employee,  or  his  death,  excuses  per- 
formance, and  he  or  his  representative  may  recover  for  what 
was  actually  done  before  such  sickness  or  death."  And  where 
one  contracted  that  his  wife  should  play  the  piano  at  a  concert,  he 
is  not  liable  for  non-performance  if  the  wife  be  sick  and  cannot  do 
Bo.^  So  as  to  any  other  inability  not  involving  his  own  fault,*  as 
the  freezing  of  a  river,"  or  the  foundering  of  a  ship  on  which  a 
sailor  engages  for  a  voyage.'  But  where  the  plaintiff  apprenticed 
his  son  to  a  watchmaker  and  jeweler  for  six  years,  paying  him  a 
premium  of  twenty-five  pounds,  and  the  master  duly  instructed 
the  apprentice  for  a  year  and  then  died,  it  was  held,  in  an  action 
against  the  master's  representative  for  money  had  and  received  to 
recover  the  whole  or  some  part  of  the  premium,  on  the  ground 
of  failure  of  consideration,  that  such  failure  being  only  partial  the 
action  was  not  maintainable.'  The  recovery  in  cases  of  failure  to 
perform  in  consequence  of  sickness  or  other  unavoidable  accident 
will  be  according  to  the  contract  price,  and  not  upon  the  quantum 
meruit.*  It  has  been  held  that  a  master  was  justified  in  discharging 
a  servant  who,  without  his  consent  and  contrary  to  his  wishes, 
left  his  house  to  see  her  mother  who  was  expected  to  die,  although 
she  returned  next  day  ;*  but  we  doubt  whether  the  case  would  be 
followed  in  this  country.  But  where  a  servant  refused  to  work 
Sunday,  and,  in  consequence  of  harsh  language  from  his  master, 
left  his  employ,  it  was  held  he  could  not  recover."     One  tenant 

appeals  (28  N.  Y.  494)  does  not  con-  '  WJiincup  v.  Hughes,  Law   Kep  ,  6 

flict   with   the   rule   that    mere   loose  Com.  PI.  78,  Exch.  Chamber, 

declarations  are  not  sufficient.     There  *  Clark  v.  Gilbert,  26  N.  Y.  279. 

were   in   this    case   many  and   strong  ^  Turner    v.    Mason,  14    Mees.    & 

circumstances     to     show     that     both  Welsh.  112. 

parties  understood  the  son  was  to  be  '"  Marsh  v.  Eidesson,  1  Wend.  514. 

paid  for  taking  care  of  his  mother.  This   case   does  not   decide    that   the 

'  Schofield  V.  Hernandez,  47   N.  Y.  master  had  a  right  to  compel  the  ser- 

313.  vant  to  work  Sunday,  but,  as  we  under- 

^  Wolfe  V.  Howes,  24  Barb.  174,  666,  stand  it,  that  the  servant  should  not 

20  N.  Y.  197  ;  Fahy  v.  North,  19  Barb,  have  left  but  should  have  worked  the 

341 ;  Clark  v.  Gilbert,  32  id.  577, 26  N.  remainder  of  his  term.     If  it  be  the 

Y.  279.  custom  that  servants  shall  have  Sun- 

3  Robinson  v.  Davison  L.  R.,  6  Exch.  days   and   holidays   to   themselves,   a 

269.  servant    cannot     be     discharged     for 

*  Fahy  v.  North,  19  Barb.  341.  absence     on    Sunday    or    a    holiday, 

*  Worth  v.  Edmonds,  52  Barb.  40  Queen  i  Stoke,  etc.,  5  Ad.  &  Ell.  N.  S. 

*  Daniels  v  Atlantic,  etc.,  24  N.  Y.  447.  (48  Eng.  C.  L.)  303, 1  Greenl.  Ev.,  §  292. 


CH.  IV  A.]       COMPLAINT   IN   PAETICULAR   OASES.  491 

in  common  cannot  oust  his  co-tenant,  and,  when  sued  for  the 
profits  of  the  property  owned  in  common,  charge  his  co-tenant 
with  his  services  and  money  expended,  which  were  rendered  and 
paid  without  the  plaiutiif 's  request  or  consent  and  against  his  will.' 

So  where  one  without  color  of  right  enters  upon  another's 
land,  and  performs  work  there,  he  cannot  recover  therefor,  even 
though  the  owner  promised  to  pay  him  for  it."  Otherwise,  if  he 
entered  under  color  of  right,  and  surrendered  improvements  he 
had  made  under  a  promise  for  compensation,'  unless  the  contract 
were  not  to  be  performed  within  a  year,  so  that  it  was  void  by 
the  statute  of  frauds/  If  A  lets  B  into  possession  of  his  house 
under  a  promise  that,  if  he  will  make  certain  improvements 
thereon,  he  will  lease  it  to  him  for  twelve  years,  and  after  the 
improvements  are  made  refuse  to  do  so,  B  cannot  recover  for  work 
and  labor  done/  He  should  have  sought  a  specific  performance 
in  equity,*  But  if  A  fraudulently^  under  a  representation  that 
he  is  the  owner  of  lands,  induce  B  to  perform  work  on  it  in  the 
expectation  of  becoming  a  joint  owper,  on  discovery  of  the  fraud 
he  may  rescind  the  contract,  and  recover  the  value  of  his  work, 
although  the  contract  be  void  by  the  statute  of  frauds.'  A  recovery 
cannot  be  had  for  services  voluntarily  done  for  another  without 
his  privity  or  request,  as  in  saving  his  property  from  destruction 
by  fire,*  although  the  law  will,  in  the  first  instance,  presume  a 
request,  unless  the  circumstances  be  such  as  to  rebut  such  pre- 
sumption." 

Where  one  rendered  services  as  treasurer  of  a  corporation  with- 
out any  arrangement  for  compensation,  and  there  was  evidence 
to  show  he  expected  to  be  compensated,  from  the  incidental  advan- 
tages of  his  connection  as  a  partner  with  another  officer  of  the 
company,  it  was  held  a  proper  question  for  the  jury  whether  the 
services  were  intended  to  be  gratuitous.'"  But  where  A's  logs 
were  carried  on  B's  land,  by  water,  it  was  held  he  might  recover 
for  the  use  of  his  land  while  he  suffered  them  to  remain  there,  if 

1  Holmes  v.  Bavis,  21  Barb.  266,  274,  «  Richard  v.  Stanton,  16  Wend.  27. 

275.  '  Richard  v.  Stanton,  16  Wend.  25. 

«  Frear  v.  Hardenburgh,  5  Johns.  272.  «  Bartholomew  v.  Jachson,  20  Johns 

»  Benedict  v.  Beehe,  ll  Johns.  145.  28  ;  Sheldon  v.  Sherman,  42  Barb.  3:2. 

*  Lower  v.  Winters,  7  Cow.  263.  *  Lewis  v.    Triehey,    20   Barb.   387 ; 

^  Hophins  v.  Richardson,  5  N.  Y.  Leg.  Moore  v.  Moore,  21  How.  223. 

Obs.  149,  14Law  Jour.  Q.  B.80;  (7t7fci!«  ^^  Pejidleton  v.  Em-pire,  etc.,  19  N. 

V.  Maynard,  5  Johns.  85.  Y.  13. 


492  COMPLAINT   IlSr   PAETTCULAR   CASES.       [CH.  IV  A. 

the  owner  reclaimed  them.'  It  is  no  defense  that  the  employer 
agreed  to  pay  a  third  person,  not  shown  to  be  entitled  to  the 
services,  for  the  labor,  unless  he  prove  he  have  done  so.*  The 
laborer  may  prove  the  value  of  his  services  by  the  opinion  of 
witnesses,  but  cannot  ask  for  such  value  "  under  all  the  circum- 
stances or  beyond  board."  ^  Where  one  is  working  by  the  month 
he  cannot  recover  for  working  extra  hours,  or  even  nights,  unless 
his  employer  agree  to  pay  extra  compensation  therefor.'  Wliere 
one  performs  work  for  a  municipal  corporation,  the  charter  of 
which  provides  that  such  services,  which  are  payable  by  a  locul 
portion  of  the  corporation,  according  to  benefits  received,  shall  be 
included  in  an  assessment,  and  that  no  money  chargealjle  upon 
the  assessment  fund  shall  be  paid  from  the  general  fund,  lie 
cannot  maintain  an  action  for  his  services  until  an  assessment  has 
been  collected,  or  the  corporation  is  in  default  for  not  proceeding 
with  due  diligence  to  make  and  collect  one,  for  the  contractor 
agrees  to  receive  payment  specifically  from  the  moneys  to  be 
assessed  and  collected.* 

Otherwise  if  a  corporation  contract  to  pay  for  work  and  labor 
of  general  benefit,  and  for  which  the  entire  corporation  is  to  pay, 
and  which  it  h.a,&  j?ower  to  collect  by  assessment,  which  it  unreason- 
ably neglects  to  enforce.  The  action  in  the  latter  case  may  be  for 
work  and  labor  and  need  not  count  upon  the  negligence  of  the 
corporation  to  make  and  enforce  an  assessment,  although  it  would 
perhaps  be  better  so  to  do.*  Where  work  is  done  under  a  special 
contract  the  employer  must  count  upon  that,  unless  there  be  a 
full  and  complete  performance."  If  not,  he  must  plead  the 
contract,  the  partial  performance  and  the  facts  entitling  him  to 
recover.''  If  the  duties  of  a  salaried  oflicer  be  increased  he  is  not 
entitled  to  additional  compensation  therefor  as  a  matter  of  right ;  * 
nor  will  one  who  contracts  with  another  for  the  doing  of  an  act  — 
as  the  building  of  a  house  —  be  liable  to  pay  additional  compen- 
sation, as  for  extra  work  merely,  on  proof  that  he  ordered  it,  that 

*  Sheldon  v.  Shearman,  43  Barb.  368,  ^  Baldicin  v.  City  of  Oswego,  3  Keyes, 

373,  43  N.  Y.  484.  135-187. 

2  Lewis  V.  Trickley,  30  Barb.  387.  «  Ante,  349,  marg.  p. 

8  36  Penn.  St.  367.  ■>  Atkinson  v.  Collins,  9  Abb.  353,  18 

"  Hunt  V.   City  of  Utica,  18  K  Y.  How.  3;Jo. 

443 ;  Baker  v.    City  of   Utica,  19  id.  »  Wendell    v.    City  of  Brooklyn,  39 

336.  Barb.  304. 


en.  ivA.]     complaijstt  it^  particular  cases.  493 

it  was  done  and  lie  accepted  the  work  when  completed,'  unless 
he  be  informed  or  must  necessarily,  from  the  nature  of  the  w'ork, 
be  aware  that  the  alteration  will  increase  the  expense." 

A  servant  who  is  discharged  for  not  faithfully  serving  his 
employer  —  as  for  selling  property  to  another  house  of  which  he 
is  a  member  —  cannot  recover  for  work  done  previous  to  such 
discharge,'  for  an  agent  must  faithfully  serve  his  principal,  and  is 
bound  to  the  exercise  of  all  his  skill,  ability  and  industry  in  favor 
of  his  employer.' 

But  a  traveling  agent  for  one  house  may  receive  and  execute 
orders  voluntarily  given  and  tendered  for  the  purchase  of  goods 
from  another  house.* 

So  a  servant  for  a  year,  who  is  discharged  for  drunkenness,  cannot 
recover  for  what  he  has  done.  ^ 

Where  one  contracts  to  do  the  carpenter  work  on  a  building, 
and  to  proceed  forthwith  and  without  delay,  the  employer  is  bound 
to  have  the  building  in  readiness  to  commence  the  work  within  a 
reasonable  time,  and  if  he  fail  to-do  so  within  a  reasonable  time 
the  employee  may  recover  his  damages  by  reason  of  the  delay  of 
the  employer  in  having  the  building  ready  for  him  to  do  the  stip- 
ulated work.'  So  where  the  employer  is  to  furnish  plans  or  do 
any  other  act  before  the  employee  is  to  commence.'  He  may 
recover  the  increased  expenses  of  doing  the  work,  in  consequence 

'  Collyer  v.  Collins,  17  Abb.  467.  him.     The  pleas  should  have  alleged 

'  Lovelock    V.    King,    1     Moody    &  that  plaintitF,  by  his  own  default,  be- 

Rob.  60.  came  intoxicated,  whereby  for  a  certain 

3  McDonald  v.  Lord,  26  How.  404  ;  definite  time  he  was  rendered  incapable 

Qeiger  et  al.  v.  Harris,  19  Mich.  309.  of   attending  to  defendant's  business, 

See  Wilson  v.  Brereton,  5  Irish  Law  for    non  constat  but  the  intoxication 

Eep.  466  ;  Lawrence  v.  Qullifer,  38  Me.  was  in  a  single   instance,  and   for  a 

533.  brief  period  of  time.     As  to  the  negli- 

*  Qeiger  et  al.  v.  Harris,  19  Mich,  gence,  non  constat  but  that  it  was  on 

209.  a  single  occasion,  and  was  very  slight, 

5  Huntington  v.  Clafin,  10  Bosw.  inconsiderable  and  insignificant,  not 
263,  38  N.  Y.  182;  but  see  Wilson  v.  materially  or  at  all  prejudicing  the 
Brereton,  5  Irish  L.  R.  466,  that  it  is  defendant.  This  case  turned  upon 
not  sulficient  to  allege  that  wMle  in  demurrers  to  the  defendant's  pleas, 
defendant's  employ  the  servant  became  according  to  the  rules  in  force  before 
intoxicated  and  incapable  of  properly  the  Code.  It  is,  however,  important  to 
attending  to  the  business  of  the  de-  show  what  the  rule  of  law  really  is 
fendant,  and  for  that  reason  he  dis-  and  what  a  good  answer  should  con- 
missed    plaintiff;    nor   that,   while   in  tain. 

defendant's  employ,  plaintiff  perform-  ^  Allamon  v.  3Iayor,  etc.,  43   Barb, 

ed  the  services  in  the  several  counts  33  ;   Thorp  v.  Ross,  4  Keyes,  546. 

in  the  declaration  mentioned  in  a  neg-  "^  Roberts  v.  Bury,  L.  R.,  5  C.  P.  310; 

ligent  and  careless  manner,  and   for  335. 
that  reason  the  defendant   dismissed 


494  COMPLAII^T  IN  PARTICULAR  CASES.       [CH.  IV  A. 

of  the  delay,  on  a  qtbantum  meruit,^  and  does  not  waive  the 
employer's  breach  of  the  contract  by  going  on  without  coroplaint 
or  objection  and  completing  the  work;'  nor  can  the  employee 
himself  incur  the  expense  of  removing  the  obstacle  to  his  perform- 
ance, and  charge  his  employer  therewith  without  an  agreement  by 
the  employer  to  pay  the  same."] 

*  Allamon  v.  Mayor,  43  Barb.  33.  ^  Thorp  v.  Boss,  4  Keyes,  546. 


[^384]  *CHAPTEItY. 

OF  THE  ANSWER. 

The  only  pleading  on  the  part  of  the  defendant  is  either  a  demurrer 
or  an  answer.  It  must  be  served  within  twenty  days  after  the 
P^n-yice  of  a  copv  of  the  complaint.'  The  nature  and  office  of  the 
drtnurrer  under^the  Code  will  be  considered  in  a  subsequent  chapter. 
The  present  chapter  will  be  confined  to  the  subject  of  the  answer 
to  the  plaintiff's  complaint  in  the  following  order : 

1.  Nature  and  use  of  the  answer. 

2.  General  and  specific  denial  of  the  plaintiff's  allegations. 

3.  The  statement  of  new  matter  in  the  answer. 

4.  Counter-claim,  nature  of,  and  when  and  how  pleaded. 

5.  The  verification  of  the  answer. 

6.  Sham,  irrelevant,  and  frivolous  answers  and  defenses. 

7.  The  supplemental  answer. 

[*385]  *  SECTION  I. 

GENERAL  NATURE  AND  USE  OF  AN  ANSWER. 

The  answer  to  the  plaintiff's  complaint,  which  the  Code  allows, 
18  at  once  a  substitute  for  the  plea  to  the  declaration  at  law,  and 
for  the  plea  and  answer  to  a  bill  in  equity.  In  an  action  at  law 
there  were  pleas  to  the  jurisdiction,'  pleas  in  abatement,  and 
pleas  in  har.  These  pleas  were  pleaded  in  the  order  in  which 
they  are  here  mentioned,  and  which  was  said  to  be  "  the  natural 
order  of  pleading."  Where  the  defendant  pleaded  in  ahatement 
to  the  disability  of  the  person  of  the  plaintiff  to  sue,  or  the 
defendant  to  be  sued,  he  waived  his  plea  to  the  jurisdiction  of 
the  court;  and  where  he  pleaded  in  6ar  to  the  action  he  could 
not  afterward  plead  in  abatement,  unless  for  new  matter  arising 
after  the  commencement  of  the  suit."' 

Defenses  in  abatement  were  to  some  defect  or  error  which 
merely  defeated  the  present  proceeding,  and  did  not  show  that  the 
plaintiff  was  forever   concluded.*     A   pica  in    abatement   was 

'Code,  §143.  ^        n  Sits- IS' '''•'''''"•'''• 

2  This  plea  was  seldom  or  never  used  1  '--hit.  i  i.  'i^. 

in  practice. 


496  THE  ANSWER.  [CIT.  V, 

required,  not  only  to  point  out  specifically  the  error  or  defect,  but 
also  to  show  the  plaintiff  how  such  defect  might  be  corrected, 
and  furnish  him  with  materials  for  avoiding  the  same 
[*386]  mistake  in  another  suit  in  regard  to  the  *same  cause  of 
action ;  or,  in  technical  language,  it  must  give  the  plaintiff 
a  hetter  writ} 

A  plea  in  har  went  to  the  merits  of  the  case  and  denied  that 
the  plaintiff  had  any  cause  of  action ;  or  admitting  that  he  once 
had,  insisted  that  it  had  been  determined  by  some  subsequent 
matter."  Such  defenses  as  heretofore  were  to  be  set  up  by  plea 
to  the  jurisdiction  or  by  plea  in  abatement  are  now  like  the  plea 
in  bar,  to  be  taken  by  answer  where  the  objection  does  not  appear 
on  the  face  of  the  complaint.' 

[The  distinction  between  pleas  in  abatement  and  pleas  in  bar  is 
abolished  by  the  Code.  The  defendant  may  unite  in  the  same 
answer  a  defense  which  was  fonnerly  a  plea  in  abatement,  and 
one  which  was  a  plea  in  bar.*  In  such  cases  it  is  the  duty  of 
the  court  to  require  a  separate  verdict  upon  each  defense.^  If  the 
defendant  plead  in  abatement  only,  and  the  issue  is  found  for 
the  plaintiff,  the  defendant  is  not  entitled  to  plead  over,  but  the 
court  or  jury  should  assess  plaintifTs  damages,  and  final  judgment 
should  be  awarded  for  him.* 

A  plea  in  abatement,  that  A  and  B  were  copartners,  and  should 
have  been  co-defendants,  is  not  sustained  by  evidence  that  B  wjis 
such  partner.  Tiie  defendant,  by  his  plea,  must  give  the  party  a 
better  writ.  He  must  state  precisely  and  truly  who  were  the 
parties  to  the  contract.     If  he  fail  to  do  this  his  plea  fails.'' 

If  the  defendant  rely  upon  a  compromise  of  a  former  action 
for  the  same  cause,  which  has  neither  been  discontinued  nor  pro- 
ceeded to  judgment,  he  must  plead  another  action  pending.  Such 
facts  are  not  available  to  defeat  the  second  action,  merely  upon 
allegations  that  the  former  action  included  the  cause  of  action 
upon  which  the  present  suit  was  brought ;  that  it  was  settled  by 

'1  Cnil  PI.  44fi.     {Wygand  V.  SicTiel,  Jiew  v.  Robinson,  10  How.  Prac.  164; 

Or  How.  174,  3  Keyes,  120  ;  Traver  v.  Thompson  v.  Greenwood,  28  Ind.  327; 

Eighth,  etc.,  3  id.   497 ;   Eingsland  v.  Sullimn  v.  Frazee,  4  Rob.  616. 

Braested,  2  Lans.  17.]  ^  Gardner  v.  Clark,  31  N.  T.  399. 

«  Id.  469.  ^  T/iomp.-<on  v.  Greemcood,  28  Ind.  327. 

»  Code,  §  147.  ''  WTjgand  v.  Sichel,  33  How.  174,  3 

*  Sweet  V.  Tuttle,  14  N.  T.  465 ;  May-  Keyes,  120. 


SEC.  I.]  NATIIEE  AND   USE   OF.  497 

compromise  and  the  amount  paid.'  The  mcjre  pendency  of  a 
former  suit  by  a  tldrd  person,  at  the  time  of  the  commencement 
of  the  second  action,  is  no  defense  if  such  third  person  did  not  in 
fact  then  own  the  cause  of  action."  An  action  can  only  be  discon- 
tinued by  entering  an  order  to  that  effect  with  the  clerk  and 
serving  a  copy  or  notice  thereof;'  and  the  discontinuance  must 
be  before  answer  to  defeat  a  plea  of  former  suit  pending."  There 
was  no  question,  before  the  Code,  that  if  defendant  had  appeared 
the  plaintiff,  in  order  to  perfect  a  discontinuance,  was  required  to 
pay  the  defendant's  costs.* 

It  has  been  held  since  the  Code  that  if  defendant  have  employed 
an  attorney  he  is  entitled  to  costs  although  no  notice  of  appearance 
be  given  ; '  and  as  the  Code  gives  the  costs  to  the  party, ^  instead 
of  the  attorney,  as  under  the  old  practice,  we  can  see  no  reason 
why  the  defendant  is  not  entitled  to  costs  as  soon  as  the  action  is 
commenced  although  he  never  employ  an  attorney.  The  pen- 
dency of  an  action  against  the  defendant  individually  upon  one 
contract  is  no  defense  to  an  action  against  him  on  another  of  a 
similar  character  made  at  the  same  time  as  executor,  although  he 
be  personally  liable  upon  the  latter.'  The  mere  pendency  of  an 
action  upon  contract,  for  goods  sold  and  delivered  without  judg- 
ment, is  no  defense  to  an  action  in  tort  for  the  conversion  of  the 
same  goods ; '    otherwise  if  the  first  action  have  proceeded  to 

•  O'Beirne  v.  Lloyd,  6  Abb.  N.  S.  387.  can  a  plaintiff  render  a  valid  plea  in- 
Altliougli  a  general  term  decision  of  valid  by  his  own  act,  and  himself  do 
the  superior  court  of  the  city  of  New  an  act  which  will  subject  his  adversary 
York,  the  editor  respectfully  submits  to  costs  of  an  unsuccessful  defense 
this  case  is  not  good  law.     If  the  facts  properly  interposed  ? 

are  pleaded,  as  required  by  the  Code        ^  Smith  v.  White.,  7  Hill,  520;  Averill 

(§  149),  and  those  facts,  if  established,  v.  Patterson,  10  N.  Y.  500;  Bedell  v. 

constitute  a  defense,  why  is  not  the  Powell,  13  Barb.  183 ;  and  see  Buffalo, 

answer  good?     Again,  if   a  suit  has  etc.,  v.  Johnson,  42 'iff.  Y.  215. 
been  compromised,  how  can  it  be  said        ^  Weigen  v.  Held,  3  Abb.  462. 
to  be  pending?    The  failure  to  enter        '  Code,  g  303. 

a  formal  discontinuance  on  the  record        ^  Erie,  etc.,  v.  Patrick,  2  Keyes,  256. 

will  not  of  itself  keep  a  suit  pending.  The  conclusion  of  the  report  of  this 

2  Hatters'  Bank  v.  Phillips,  38  N.  Y.  case  erroneously  states  that  the  judg- 
128.  ment  was  "affirmed,"  whereas  it  was 

3  AveriU  v.  Patterson,  10  N.  Y.  500,  in  fact  "  reversed."  The  word 
10  How.  85  ;  Bishop  v.  Bishop,  7  Rob.  "  counteracted,"  line  10,  page  259, 
194.  See  Buffalo,  etc.,  v.  Johnson,  42  should  read  "  consolidated."  Keyes' 
N.  Y.  215.  Reports   are   full  of    errors,    and   his 

*  Bedell  v.  Powell,  13  Barb.  183 ;  report  of  a  case  should  be  carefully 
Swart  V.  Borst,  17  How.  69  ;  but  see  scrutinized  by  the  practitioner  before 
Clark  V.  Clark,  7  Rob.  276.   The  latter  being  cited. 

case  is  probably  not  good  law.    How        »  Wright  v.  Bitterman,  4  Rob.  704. 

63 


498  THE  AlSrSWEE.  [CH.  Y. 

judgment,  for  in  sucli  case  the  cause  of  action  is  merged  in  the 
judgment,  and  the  plaintiff  has  conch^sivelJ  elected  to  pursue 
one  of  two  remedies.'  A  plea  of  a  former  suit  in  a  State  court  is 
not  a  good  plea  in  abatement  to  a  suit  in  the  federal  courts  in 
another  district ; '  so  a  suit  in  the  courts  of  one  State  is  no  bar  to 
a  suit  in  those  of  another,  as  the  courts  of  one  State  cannot  enforce 
its  orders  and  judgments  beyond  its  own  territory,  and  the  plain- 
tiff's remedy  may,  for  this  cause,  be  incomplete.  The  defendant 
may  have  j)roperty  which  ought  to  be  applied  to  the  payment  of  the 
Bame  demand  in  both  jurisdictions ;  or  his  property  may  be  in  one 
jurisdiction  and  his  person  in  another,'  although  the  courts  of  one 
State  will  sometimes  interfere  by  injunction  to  restrain  a  party 
within  its  jurisdiction  from  prosecuting  a  suit  in  the  courts  of 
another  State.*] 

The  nonjoinder  of  a  dormant  partner  as  a  defendant  is  not  a 
good  plea  in  abatement,  where  the  plaintiff  had  no  notice  he  was 
a  partner  ;^  and,  it  seems,  one  joint  owner  of  a  demand,  if  they  be 
not  partners,  may  maintain  an  action  for  his  share  of  the  demand.* 
If  one  partner  be  not  joined  the  defendant  cannot,  if  he  have  not 
pleaded  the  nonjoinder  in  abatement,  upon  the  trial,  even  insist 
upon  apportioning  the  damages.  The  plaintiff  is  entitled  to  recover 
the  entire  damages.''  Otherwise  as  to  tenants  in  common.''  In- 
fancy is  a  personal  privilege,  and  the  contract  of  an  infant  being 
voidable,  and  not  void,  a  plea  of  the  nonjoinder  of  an  infant 
copartner  is  good,  because  his  copartner  has  no  right  to  insist  upon 
his  infancy.*     The  only  way  of  taking  advantage  of  a  mere  mis- 

*  Lowell  V.  Lane,  33  Barb.  292,  and  ^  Cookingham  v.  Lasher,    38  Barb, 

cases  cited  arguendo  p.  207.  Gofi,  2  Keyes,  454 ;  Leslie  v.  Wiley,  47 

■'  White  V.  Whitman,  1  Curtis,  494 ;  N.  Y.  648. 
Wadleigh  v.  Veazie,  3  Sumn.  165.  See  2  ^  Allen  v.  Brown,  51  Barb.  93-4.  This 
Pars,  on  Cont.,  5th  ed.,  726,  note  h,  that  question  is  fully  treated  by  Mr.  Parsons 
where  the  courts  have  equal  power  (1  Pars,  on  Cont.,  5th  ed.,  pp.  11-38). 
to  do  complete  justice  between  the  See,  also,  Moak's  notes  to  Clarke's  Ch., 
parties,  and  that  as  the  State  and  123-4,  where  the  question  whether  the 
federal  courts  in  the  same  district  have  other  joint  owner  should  not  be  made 
concurrent  jurisdiction,  the  pendency  a  party  defendant,  if  he  refuse  to  join 
of  a  suit  in  one  is  a  bar  to  a  suit  in  the  as  plaintiff,  is  discussed  and  the  author- 
other.  This  we  consider  the  better  ities  cited.  See,  also,  Mr.  Perkins's  note 
doctrine.  to  Rodick  v.   Gandel,  1  De  Gex,  Mc- 

3  Smith  V.  Atlantic,  etc.,  22  N.  H.  24;  Nau^:hton  and  Gordon,  703,  Am.  ed. 

Bowne  v.  Joy,  9  Johns.  221 ;   Walsh  v.  '  Abbe  v.  Clark,  31  Barb.  238,  240. 

Burkin,  12  id.  d2;  Lyman  V.  Brown,  ^  S locum  v.  Hooker,  13    Barb.  536, 

2  Curtis,  559  ;  Williams  v.  Ayrault,  81  reversing    12     id.    56.3  ;     Shepard    v. 

Barb.  364 ;  see  post,  680,  marg.  p.  Greaves,!  N.  Y.  Leg.  Obs.  281.  Gen.  T., 

^  Vail  V.  Knapp,  49  Barb.  3U0.  Supbrior  Court  of  city  of  New  York. 


SEC.  I.]  NATUEE  AND   USE   OF.  499 

uorner  —  the  bringing  of  an  action  by  a  married  woman  in  her 
maiden  name  —  is  by  plea  in  abatement.'  A  plea  qf  nonjoinder 
must  show  the  party  omitted  is  living ;"  but  an  answer  which 
alleges  that  he  resides  at  a  particular  place  is  a  sufficient  allega- 
tion that  he  is  still  living.^  If,  however,  the  complaint  show  that 
certain  persons  are  necessary  parties,  the  defendant  may  demur  on 
account  of  their  nonjoinder,  although  the  complaint  do  not  allege 
that  they  are  living.*] 

Allusion  has  been  made  on  a  former  page  to  the  use  of  the  plea 
in  equity.^  It  has  been  a  subject  of  dispute  whether  there  was 
in  equity  any  thing  which  might  properly  be  called  a  plea  in 
abatement.  But  it  seems  to  be  settled  on  the  highest  authority, 
that  whether  or  not  pleas  in  abatement  in  their  strict  sense  were 
known  in  equity,  pleas  in  the  nature  of  pleas  in  abatement  were 
not  only  known  but  of  frequent  use.  Of  this  nature  were  all 
declinatory  pleas,  corresponding  with  common-law  pleas  to  the 
jurisdiction  ;  and  all  dilatory  pleas,  corresponding  with  pleas  to  the 
person.  And  the  rule  governing  these,  as  to  the  order  of  pleading, 
was  the  same  as  at  common  law.  All  declinatory  and  dilatory 
pleas  in  equity,  says  Judge  Stoky,  are  properly  pleas,  if  not  in 

abatement,  at  least  in  the  nature  of  pleas  in  abatement ; 
[*390]  *and,  therefore,  in  general,  the  objections  founded  thereon 

must  be  taken  ante  litem  cOntestatam  by  plea,  and  are  not 
available  by  way  of  answer  or  at  the  hearing.*  The  same  principle 
is  to  be  traced  in  the  civil  law,  from  which  our  equity  system 
probably  derived  it,  and  from  which  the  rules  governing  our 
system  of  admiralty  pleadings  are  derived.  Exeeptions  in  the 
civil  law,  corresponding  to  pleas  in  equity,  were  of  two  kinds,  aut 
perpetuoe  et  peremptoricB,  aut  temporales  et  dilatorice  —  peremp- 
tory exceptions  or  dilatory  exceptions.  The  former  were  a 
perpetual  bar,  the  latter  temporary  in  their  nature  and  operation, 
and  always  put  in  before  the  suit  was  put  in  contestation.'  The 
rule,  as  we  have  seen,  is  fully  recognized  in  equity  cases.  It  is 
I'ecognized  in  the   federal  courts  of   the  United  States,  as   in 

^  Traver  y.  EtgJitli  Ave.  R.  R., 6  Abb.        ^Burgess   v.    Abbott,   6  Hill,   476; 

N.  S.  46, 3  Keyes,  497  ;  Eagleston  v.  Son,  Eaton  v.  Balcom,  33  How.  81. 
5  Rob.  640.  =>  Ante,  patje  34. 

5  Burgess  v.  Abbott,  1  Hill,  476,  6        «  storv's  Eq.  PI.,  ^  708. 
i,i.  135.  ■>  Story's  Eq.  PI.,  §  707. 

*  Taylor  v.  Richards,  9  Bosw.  679. 


500  THE   ANSWER.  [CH.  V. 

De  Wolf  V.  Rehaud  et  al.,'  where  it  is  decided,  on  full  considera- 
tion, that  the  question  of  the  citizenship  of  a  party  is  matter 
which  •must  be  brought  forward  by  plea  in  abatement  in  the 
earlier  stages  of  the  case,  and  constitutes  no  part  of  the  issue  on 
the  merits.  It  is  recognized  also  in  the  admiralty  practice,  as  in 
the  case  cited  in  Gardner  v.  Clark,'  wherein  it  was  held  by  Judge 
Story  that  an  objection  founded  upon  the  pendency  of  another 
suit,  if  taken  at  all,  should  be  taken  by  a  "  special  plea  in  the 
nature  of  a  plea  in  abatement,  known  in  the  ecclesiastical  and 
admiralty  courts  by  the  appellation  of  a  dilatory  or  declina- 
[*391]  tory  exception,  which  is  always  *brought  forward  before 
the  contestatio  litis,  or  general  defense  in  bar,  or  general 
answer  upon  the  merits."  The  principle,  therefore,  seems  to  run 
through  every  system  of  pleading  known  to  our  courts,  and  to  be 
founded  substantially  upon  the  nature  of  both  legal  and  equitable 
remedies,  and  not  upon  mere  artificial  distinctions  or  peculiarities 
in  the  mode  of  practice  adopted  by  the  difierent  systems ;  and 
this  certainly  is  a  strong  argument  in  support  of  the  position  that 
the  Code  has  not  changed  this  practice.  The  analogy  between 
the  rules  of  civil-law  pleading  as  applied  in  our  courts  of  admi- 
ralty," and  the  general  propositions  regulating  the  pleadings  in 
civil  actions  by  the  Code,  furnishes  another  argument  in  support 
of  the  same  position. 

Defenses  on  the  merits. —  At  common  law  an  answer  on  the 
merits  was  made  by  what  was  called  a  plea  in  bar.  It  either 
denied  that  the  plaintiff  had  any  cause  ot  action ;  or,  admitting 
that  he  once  had,  insisted  that  it  had  been  determined  by  some 
subsequent  matter,"  The  dilatory  plea  tended  merely  to  divert, 
suspend,  or  abate  the  proceedings ;  but  the  plea  in  bar  impugned 
the  right  of  action  altogether,  and  was  a  substantial  and  conclusive 
answer  to  the  plaintiff's  claim.  It  was  of  two  kinds,  namely,  a 
plea  by  way  of  traverse,  that  is,  a  denial  of  all,  or  some  essential 
part  of  the  averments  of  fact  in  the  declaration ;  and  a  plea  by 
way  of  confession  and  avoidance,  which  admitted  the  declaration 
to  be  true,  but  alleged  new  facts  to  obviate  cr  repel  its 
[*392]  legal  ^effect.'    The  plea  in  bar  dealt  solely  with  facts. 

'  1  Peters,  476.  "  1  Chit.  PI.  446. 

^  2  Suinn.  592.  ^  Steph.  PI.  51. 

*  See  ante,  'p'p.  336  et  seq. 


SEC.  I.]  NATURE   AND   USE   OF.  501 

It  was  never  used,  like  tlie  answer  in  chancery,  which  will  be 
presently  noticed  as  an  examination  of  the  plaintiff.  It  was  re- 
quired to  be  framed  with  the  strictest  and  most  logical  pre- 
cision of  language,  in  order  to  reach  the  great  end  and  object 
of  all  common-law  pleading,  namely,  the  formation  of  "  a  single, 
certain  and  material  issue." 

An  answer  in  chancery,  on  the  other  hand,  which  was  the  most 
common  mode  of  defense  to  a  bill,  performed  a  double  office. 
This  fact  it  will  be  necessary  to  keep  constantly  in  view  in  order 
to  attain  a  correct  idea  of  the  system  adopted  by  the  Code.  In 
the  first  place,  the  answer  was  used  for  the  purpose  of  setting  up 
the  defense  of  the  defendant  upon  the  merits  to  the  case  made  by 
the  bill ;  and  secondly,  it  called  out  an  examination  of  the  defendant 
on  oath  as  to  the  facts  charged  in  the  bill  of  which  a  discovery 
was  sought,  and  to  which  interrogatories  were  usually  addressed.' 
The  examination  was  merely  evidence  in  the  cause,  and  was 
altogether  independent  of  the  matter  in  defense.''  It  was  the 
right  of  the  plaintiff,  as  we  have  seen,  to  require  a  full  discovery 
from  the  defendant  of  matters  charged  in  the  bill  that  were  neces- 
sary or  proper  to  ascertain  facts  material  to  the  merits  of  his 
case.  In  other  words,  to  use  the  bill  of  complaint,  as  the  instru- 
ment of  an  examination  of  the  defendant.'  Hence  the 
[*393]  general  rule  in  equity,  subject  to  some  exceptions,  *that 
if  the  defendant  answer  at  all  he  must  answer  fully,  and 
that  he  cannot  by  answering  excuse  himself  from  making  a  full 
discovery.*  This  rule  of  course  can  have  no  application  under 
the  Code.  For,  as  we  have  seen,*  the  discovery  is  abolished  by 
the  Code,  and  a  complaint  cannot  be  used  as  an  examination  of 
the  defendant.  It  follows,  therefore,  that  the  second  office  of  the 
answer  in  chancery,  above  mentioned,  has  no  place  under  our 
present  system. 

It  is  curious  in  this  connection  to  observe,  in  this  departure 
from  the  equity  pleadings  sanctioned  by  the  Code,  another  close 
analogy  to  the  rules  of  the  civil  law.  By  that  law,  though  inter- 
rogations were  allowed,  and  an  examination  of  the  defendant 
permitted,  yet  this  was  never  combined  with  the  original  lihel 

'  Story's  Eq.  PI.,  §  850.  »  Ante,  pp.  37,  38,  70-74. 

s  Story's  Eq.  Pl.,^  672  ;  Wigram  on         *  Story's  Eq.  PI.,  §  846. 
Discovery,  10-13.  *  Ante,  p.  7o. 


502  THE  ANSWEE.  [CH.  V. 

setting  forth  the  cause  of  action.  When  the  plaintiif,  or  actot^, 
had  put  in  his  positions,  or  narrative  of  his  case,  the  defendant,  or 
reus,  put  in  his  contestations  or  denials  (which  were  called  excep- 
tions) either  dllatoricB,  in  the  nature  of  an  answer  in  abatement, 
or  peremptoriw,  in  the  nature  of  an  answer  iu  bar  or  on  the 
merits.  The  plaintiff  then  had  liberty  upon  the  issue  thus  formed 
to  frame  his  interrogatories,  which  were  called  articuli,  to  be 
exhibited  to  the  defendant,  and  he  was  called  upon  to  answer,  in 
order  to  supersede  the  necessity  of  other  proof.'     The  defendant's 

answer  to  the  lihellus  articulatus,  or  interrogation  of  the 
[*394]  plaintiff,  was  a  *distinct    thing  from  his  exceptions  or 

contestations  of  the  plaintiff's  claim.  The  former  is 
analogous  to  the  defendant's  answer  in  chancery,  on  oath  to  the 
charging  and  interrogating  part  of  the  bill,  which  we  have  seen 
has  no  place  in  the  system  of  the  Code  ;  the  latter  is  similar,  both 
to  the  defense  interposed  by  the  defendant  in  equity  to  the  stating 
part  of  the  bill,"  either  by  plea  or  by  answer,  and  to  the  plea  in 
bar  on  the  merits  in  a  common-law  action.' 

The  answer  therefore,  in  all  these  various  modes  of  pleading, 
was  made  to  perform  substantially  the  same  office.  Nor,  keeping 
in  mind  the  distinction  that  so  much  of  the  equity  answer  as  was 
responsive  to  such  part  of  the  bill  as  the  plaintiff  designed  solely 
for  the  purposes  of  an  examination*  is  done  away  with,  is  there 
so  much  difficulty  as  might  at  first  sight  be  supposed  in  the 
establishment  of  an  uniform  system  and  set  of  rules  to  govern  all 
answers  whether  to  legal  or  equitable  causes  of  action.  The 
answer  in  equity,  stripped  of  every  thing  which  was  required  to 
be  inserted  as  responsive  to  the  interrogatories  of  the  bill,  or  the 
examination  of  the  defendant,  differed  Kttle,  if  any,  from  the 
ordinary  chancery  plea ;  and  the  latter  was  closely  similar  to,  and 
in  many  respects  governed  by  precisely  the  same  rules  as  a  common- 
law  special  plea,  or  plea  in  bar.     Thus  the  defense  proper  for  a 

plea  in  equity  is  such  as  reduces  the  cause,  or  some  part 
[*395]  of  it,  to  a  single  *  point,  and  thence  creates  a  bar  or  other 

'  Story's  Eq.  PL,  §§  14, 39..  and  notes,  after  the   civilians,  exeeptio    peremp- 

'  See  ante,  pp.  37,  38.  toria. 

•■'  The  same  name  even  is  applied  to  ■*  See  remarks  on  this  subject,  ante, 

them  by  tlie  older  writers.    A  common-  pp.  71,  75. 
law  plea  in  bar  is  called  by  Bracton. 


SEC.  I.]  NATURE  AND   USE   OF.  503 

obstruction  to  tlie  suit  or  to  the  point  to  which  the  plea  applies.' 
Like  the  common-law  plea  in  bar  it  must  be  material,'  and 
whether  affirmative  or  negative,  it  must  be  either  an  allega- 
tion or  a  denial  of  some  leading  fact,  or  of  matters  which,  taken 
collectively,  make  out  some  general  fact  which  is  a  complete 
defense.'  It  must  also  be  single,  and  not  mix  up  in  the  same  plea, 
several  defenses  to  the  same  cause  of  action ;  though  this  did  not 
prevent  it  from  setting  forth  a  great  variety  of  circumstances 
tending  to  a  single  point.'  It  must  also  be  certain  /  it  must 
tender  issuable  matter,  the  truth  or  falsehood  of  which  may  be 
replied  to  or  put  in  issue  ^  and  that  not  in  the  form  of  general 
propositions,  but  specifically  and  distinctly.*  The  equity  plea 
too,  like  the  common -law  plea  in  bar,  was  either  by  way  of 
traverse  and  denial,  or  of  confession  and  avoidance.  The  plea 
by  way  of  traverse  relied  altogether  upon  matters  stated  in  the 
record,  and  upon  denials  and  negations  of  matters  of  fact  contained 
therein,  which  denials  and  negations,  if  true,  constituted  a  suffi- 
cient defense.^  The  plea  in  confession  and  avoidance  was 
[*396]  *  of  matters  dehors  the  bill  —  new  matter  —  such  as  a 
release,  a  settled  account,  the  statute  of  limitations,  etc., 
which,  admitting  the  case  made  by  the  bill,  seeks  to  avoid  its 
effect  by  alleging  circumstances  in  bar  of  the  relief  sought.  In 
like  manner,  the  answer  of  the  defendant  in  equity  on  the  merits, 
and  not  by  way  of  discovery,'^  served  an  entirely  similar  purpose. 

1  Mitf.  Eq.  PI.  295,  296, 297,  Cooper's  to  the  plaintiff,  of  which  the  defendant 

Eq.  PL  223.  was  not  at  liberty  to  debar  him.    Hence 

*  Ibid.,  2    Dan.  Ch.  Pr.  102,  104,  7  the  necessity,  in  some  cases,  of  requir- 

Johns.  Ch.  214.  ing  an  answer  by  way  of  discovery  to 

'  Ibid.,  4  Paige,  178,  Story's  Eq.  PI.,  accompany  a   plea ;   as    for  example, 

§§  653,  654.  where  the  plaintitf  admits  by  his  bill 

■*  It  was  formerly  a  question  whether  the    existence    of    a   legal  bar  to  his 

a  purely  negative  plea  was  a  legitimate  claim,   but    charged    some    equitable 

mode  of  defense  in  courts  of  equity,  circumstances  to  avoid  its  effect.     The 

but  the  doubt  has  been  dissipated,  and  defendant  might  insist,  by  way  of  plea, 

it  is  now  firmly  established  that  such  upon  the  legal  bar,  denying  the  circum- 

plea  is  good.     Thus  in  opposition  to  stances   which    would   avoid    it;    but 

the  claims  of  a  complainant  as  heir  at  inasmuch  as  the  plea  proper  was  not 

law,  the  defendant  may  plead  that  he  used  for  the  purposes  of  an  examina- 

is  not  heir  at  law ;   and  a  plea  that  tion,  he  must  accompany  it  with  an 

defendant  was  not  a  partner  has  been  answer  in  support  of  his  plea,  making 

held  good  to  a  bill  seeking  an  account  a  discovery  as  to  all  the  circumstaucea 

of     partnership     transactions.        See  charged   in   the   bill.      These  distinc- 

Story's  Eq.  PL,  §  668,  and  cases  there  tions,  it  will  be  readily  seen,  can  have 

cited.  no  place  in  our  new  system.     See  this 

5  Ibid.,  1  Barb.  Ch.  Pr.  117.  subject  considered.  Story's  Eq.  PL,  § 

^  The   discovery  in    equity,   as   has  673,  et  seq. 
been  observed,  was  a  matter  of  right 


504  THE  ANSWER.  [CH.  V. 

It  was  used,  first,  as  answering  the  complainant's  case  as  made  by 
his  bill ;  and  secondly,  for  the  purpose  of  stating  to  the  court  the 
nature  of  the  defense  upon  which  the  defendant  meant  to  rely. 
Or,  in  other  words,  the  answer  on  the  merits  purely,  of  an  ordinary 
chancery  bill,  was  used  for  the  purpose  of  controverting  the  case 
stated  by  the  complainant,  either  by  confession  and  avoidance,  or 
by  traverse  and  denial  of  the  several  parts  of  the  bill ;  or,  admit- 
ting the  case  made  by  it,  submit  to  the  judgment  of  the  court 
upon  the  bill,  or  upon  a  new  case  made  by  the  answer,  or  both.' 
Havino-  traced  these  analogies  common  to  the  different  systems 

of  pleading,  a  careful  consideration  of  which  may  be  of 
P39Y]  much  service  in  arriving  at  a  correct  *understanding  of  the 

subject,  let  us  in  the  next  place  see  how  far  they  may  be 
followed,  and  in  what  manner  applied  to  the  pleadings  of  the 
Code.  The  general  idea  apparent  in  the  simple  and  concise  for- 
mula laid  down  by  the  Code  for  the  government  of  the  defendant 
in  stating  his  defense,  is  precisely  the  same  with  that  which  per- 
vades and  lies  at  the  foundation  of  the  diiferent  forms  of  pleading 
we  have  considered,  and  is  to  be  found  equally  in  the  exception  of 
the  civil  law,  the  jjlea  in  har  of  the  common  law,  and  the  plea  or 
the  pure  answer  on  the  merits  in  equity.  This  idea  is  that  the 
answer  is  to  be  used,  first,  for  the  purpose  of  denial  or  taking 
issue  upon  the  case  as  presented  by  the  plaintiff;  and  second,  of 
stating  to  the  court  and  apprising  the  plaintiff  of  the  nature  of  any 
substantive  matter  of  defense  which  the  defendant  may  have  to 
the  action,  not  appearing  on  the  face  of  the  complaint.  Another 
pervading  idea  of  the  answer  of  the  Code,  to  be  presently  noticed 
more  fully  (and  which  is  also  common  to  both  common-law  and 
equity  pleadings)  is  the  narrowing  down  the  issues  to  be  tried,  by 
the  admission  on  the  record  of  such  facts  as  the  defendant  by  his 
answer  does  not  deny. 

The  answer  of  the  Code  is  required  to  contain : 

1st.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge  or 
information  thereof  sufficient  to  form  a  belief. 

2d.  A  statement  of  any  new  matter  constituting  a  defense  or  counter 
claim,  in  ordinary  and  concise  language  without  repetition.* 

[*398]       *  In  the  first  place  the  defendant  is  called  upon  to  deny 

■'  1  Barb.  Cb.  Pr.  130.  »  Code,  §  149. 


gjjC.  1.]  NATURE  AND   USE   OF.  505 

generally  or  specifically  eacli  material  allegation  which  he  m- 
Inds  to  controvert.  The  option  is  left  him  to  controvert  wh.ch 
of  them  and  as  many  of  them  as  he  pleases.  We  have  seen  tha 
the  equity  practice,  that  when  he  submits  to  answer  he  must 
answer  fully,  that  is,  answer  the  whole  ot  the  statements  and 
charges  contained  in  the  complaint,  has  no  place  m  the  Cole 
answer  ;  and  the  reason  of  it  was  also  stated,  namely,  because  the 
discovery  in  pleadings  is  abolished.' 

The  effect  of  not  answering  and  denying  any  material  allegation 
in  the  complaint  is  precisely  the  same  as  though  it  were  admitted  to 
be  true  [and  defendant  cannot,  on  the  trial,  controvert  an  aUegation 
admitted  by  not  being  denied.'  If  a  defendant  wish  to  avail  himself 
of  the  statute  of  frauds,  he  must  deny  the  allegation  m  the  com- 
plaint that  an  agreement  was  made  or  plead  the  statute.  If  a  plain- 
tiff by  his  complaint,  admit  payment  of  a  certain  sum,  he  cannot 
deny  it  The  amount  admitted  to  be  paid  is  the  amount  which 
plaintiff  claims  was  the  original  demand,  less  the  amount  claimed  to 
be  due  n  The  defendant  may,  however,  without  prejudice  to  his 
case,  omit  to  answer  matters  not  well  pleaded,  as  matter  immaterial 
to  the  issue,  inferences  of  law,  etc.,  and  such  also  was  the  rule  m 

^"^The  first  object  of  the  answer  in  chancery,  as  of  the  answer 
under  the  Code,  was  to  put  in  issue,  or  controvert  the  facts  stated 
by  the  plaintiff  in  his  bill  of  complaint.  The  second  object  was 
to  state  facts  dehors  the  bill  in  avoidance  of  the  case  made  therein, 
and  upon  which  the  defendant  intended  to  rely  in  his  defense ;  or 
in  the  language  of  the  Code,  "  new  matter  constituting  a  defense 
or  counter-claim."  * 

A  complainant  had  always  a  right  to  be  apprised  of  the  nature 

of  the  defense  which  the  defendant  intended  to  set  up. 

P399]  The  defendant  was  therefore  *  bound  to  apprise  him  ol 

the  case  or    "new  matter,"    on  which  he  relied  in  his 

defense,  in  a  clear  and  unambiguous  manner -and  he  could  not 

avail  himself  of  any  matter  of  defense  not  stated  in  his  answer. 

In  actions  at  law  it  was  not  necessary  in  all  cases  to  set  up 

1  Ante,  pp.  392,  393.                        ^  „  \  ^f  f  ^  S/S'n  ^^413. 

'  Paige  V.  Willett,  38  N.  Y.  28;  Tell  \  White  ^-Sm^.^b^.  -•  ^i^. 

v.    BeiJoT,    id.  161;    RoUrt  v.    Qoocl,  1  ^^'"^^  S^"  ^^-  ^""^ 

36  id.   408;   Lawrence   v.  Bank,   etc.,  ,  Vl.   \^  r ,    p,    iq7 

8  Kob.  143 ;  Spear  v.  Hart,  3  Rob.  420.  '  1  barb.  CU.  Pr.  137 


506  THE  ATsrswEE.  [oh.  t. 

affirmatively  special  matter,  or  to  apprise  the  plaintiff  specifically 
of  the  precise  nature  of  the  defense.  The  plea  of  the  generdt 
issue  denied  the  whole  of  the  facts  alleged  in  the  declaration.  A 
special  plea  was  necessary  in  setting  up  new  matter  not  apparent 
upon  the  face  of  the  declaration}  But  under  the  general  issue, 
in  an  action  of  assumpsit  or  debt  on  simple  contract,  not  under 
seal,  the  defendant  was  at  liberty  to  give  almost  every  matter  in 
evidence,  on  the  ground  as  was  said,  that  as  the  action  was 
founded  on  contract,  and  the  injury  was  the  non-performance  of 
it,  evidence  which  disaffirms  the  continuing  obligation  of  the 
contract  at  the  time  when  the  action  was  commenced^  goes  to  the 
gist  of  the  action.''  Thus,  infancy,  lunacy,  duress,  want  or  ille- 
gality of  consideration,  etc.,  might  in  such  actions  be  given  in 
evidence  under  the  general  issue ;  also,  such  defenses  as  admitted 
that  there  was  a  sufficient  contract  made,  but  that  before  action 
brought  it  was  discharged,  released,  or  performed;  also  those, 
which  admitted  that  there  was  once  a  cause  of  action,  but  avoided 
it  by  subsequent  matter,  as  accord  and  satisfaction  —  the  plaintiff, 
an  insolvent  debtor,  etc.  But  a  special  plea,  or  notice  with  the 
general  issue,  was  necessary  in  setting  up  the  defense  of 
[*400]  alien  enemy,  *  tender,  former  recovery,  or  judgment  for 
plaintiff  or  defendant  on  the  same  matter,'  set-off,  and  the 
statute  of  limitations.^ 

In  actions  of  covenant  and  debt,  on  contracts  under  seal,  the 
rule  was  more  strict,  and  many  of  the  defenses  above  mentioned 
were  required  to  be  specially  pleaded. 

There  can  be  very  little  doubt  that  it  was  the  intention  of  the 
Code  to  abolish  the  practice  of  permitting  special  defenses  to  be 
set  up  under  a  general  denial,  as  for  example,  accord  and  satisfac- 
tion, or  a  release,  or  other  matter  going  to  show  a  discharge  of 
the  contract.  It  was  manifestly  the  intention  of  the  commissioners 
to  adopt  the  equity  rule,  and  to  require  the  defendant  to  state  the 
speciiic  grounds  of  his  defense  or  discharge.  They  propose,  they 
say,  "  that  the  plaintiff  shall  state  his  case  according  to  the  facts ; 
and  that  the  defendant^  hy  his  answer,  point  out   his   defense 

'  1  Cliit.  PL  472.  assumpsit,  former  recovery  was  held 

'12  Johns.  4'>.").  admissible  under  the  general  issue.    6 

8  1  Chit.  PI.  292.  2  Cow.  Treat.  690,  Hill,  114. 
692.      But  in  an  action  of    trover  or 


gj,^    ,1  NATURE  AND   USE  OF.  SW 

M^^vr  ■     Aceordingly,  the  provision  of  the  Code  is,  that  the 
"  L««  contain,  in  addition  to  a  denial  of  each  matena 
aiTegaiion  controverted  by  the  defendant    "«  ^>^jrf  any 
r^:, natter  constiming  a  defense  or  counter-eU.M     etc 

The  question  as  to  what  matters  may  properly  be  g  ven  m 
avo^danl  under  a  traverse,  or  mere  denial  of  the  complamt  it 
must  be  confessed  is  not  entirely  settled  s  nee  the  Code^ 
rnOll  The  question  will  be  more  *  fully  considered,  and  the 
^  cases  analyzed  in  a  subsequent  section  ol  tins  chapter  and 

it  will  be  sufficient  here,  in  considering  the  nature  and  use  of  the 
answer,  to  glance  at  it  in  a  general  way.  j     «,„ 

Uh  s  betn  thought  that,  though  it  is  a  general  ">!«.  -^er  tt.e 
Code  that  special  matters  of  defense  dehors  the  complamt,  must 
be  el  np  in  the  answer,  in  order  to  allow  them  to  be  prov,o  on 
the  trial  yet  there  are  certain  matters  of  defense  wh.ch  need  not 

example  mitters  which  go  to  the  essence  of  the  cause  of  ac  .on 

t^eontrlct,  showing  that  no  -ffl-'>\-'^'7  J^Xt^l  71 
made  or  no  cause  of  action  ever  ex.stea;  and  generally  all  euot 
m  tte'rs  as  go  to  disprove  any  material  allegation  m  the  com- 
pla  nt  Thus,  an  absolute  want  of  consideration  or  dlegahty  of 
!^  deration,  need  not  in  general  be  alleged  affirmatwely  m  the 
alver,exce;t  in  those  caseswheretheconsiderat>onbemg^^^^^^^^^^^^^ 

in  law  none  need  be  alleged  in  the  complamt.  In  all  other  cases 
as  we  have  seen  on  a  former  page,'  a  complaint  to  be  good  must 
;  w  on  its  face  a  sutficient  consideration,  wh  ch  mus  be  p^v  d 
Asreneral  denial  of  the  complaint,  or  a  specihc  denial  ot  the  tact 
ffTont  deration,  is  sufficient  to  put  the  plaintiff  upon  h.s  pro^ 
and  to  allow  the  defendant  to  rebut  such  proof  by  showmg  want 

or  illegality  of  consideration." 
r*402l       *  So  also  as  in  the  recent  case  of  Reynolds  v.  DunUrh 
^         ^   &  State  Line  R.  R.  Co.;  where  a  complaint  on  an  agree- 
xnent  for  the  sale  and  purchase  of  land  is  met  by  a  denud  m  the 

1A1  gality  of  consideration  shoiiM  properly 

'  Report  of  Com.  p.  141.  S    J  ^     anss^er,  if  the  defend- 

'  Code,  ^  149.  ant  Stl^Sds  to  rely  on  it  in  his  defense 

3  Ante,  pp.  216-231.  '  ^^  instrii"ment,this  is  required 

4  Where  the  law  implies  a  consadera-  ^^^/^^^^^^^^       .^atute.     2  R.  S.  406.  $^i 
tion,  and  it  is  neither  ^^'^^^^^^'J '^JH  }^  TO  2  Edin.  St.  423. 

first  instance  to  aver  nor  prove  one  as     i  ^    »,  - 

on  a  promis..ory  note,  the  want  or  ille-  17  l^arD.  Oi^. 


608  THE  ANSWEK.  [CH,  V. 

answer,  the  plaintiff  is  put  to  his  proof  and  must  pro^e  a  valid 
agreement  in  writing  and  the  defendant  under  such  denial  may 
rebut  such  proof. 

Upon  sinnilar  principles  in  an  action  for  wrong,  as  where  negli 
gence  or  carelessness  is  the  gist  of  the  action,  this  is  necessary  to 
be  set  out  in  the  complaint,  and  a  general  denial  of  the  negligence 
or  carelessness  will  be  sufficient  to  let  in  the  defendant's  proof, 
without  setting  up  the  specific  tacts  which  go  to  rebut  the  negli- 
gence, as  unavoidable  accident,  where  that  maj  be  a  defense,  the 
act  of  God,  or  the  public  enemies,  etc. 

And  in  an  action  for  damages  for  trespass,  the  defendant  under 
a  mere  denial  may  show  that  the  article  injured  or  destroyed  was 
worthless,  without  alleging  that  fact  in  his  answer.' 

The  common-law  rule  was  that  in  an  action  on  simple  contract 
all  matters  might  be  given  in  evidence  under  the  general  issue, 
which  go  to  show  that  no  sufficient  contract  was  eve?''  made. 
Thus  the  defendant,  as  has  been  already  observed,  under  this 
general  form  of  denial  or  traverse,  might  show  that  the  contract 
was  not  valid  in  its  inception  by  reason  of  infancy,  lunacy,  cover- 
ture, and  the  like ;  but  the  general  issue  would  not  admit  such  a 
defense  as  tender,  former  recovery,  statute  of  limitations, 
[*403]  etc.,  *  arising  subsequent  to  the  contract,  but  by  implica- 
tion admitting  a  valid  original  contract.*  The  better 
opinion  now  seems  to  be  that  such  distinctions  are  no  longer 
recognized  by  the  Code.'  The  use  of  the  general  traverse,  or 
general  or  specific  denial  of  the  Code,  is  more  limited  than  at  com- 
mon law,  and  is  similar  to  its  use  in  equity,  namely,  to  put  in  issue 
only  the  fact  or  facts  so  denied.  The  use  of  the  special  answer  of 
new  matter  is  to  set  forth  every  material  issuable  fact  upon  which 
the  defendant  wishes  to  rely,  other  than  those  generally  or  specifi- 
cally denied  in  the  answer.  And  I  conceive  the  rule  is  truly 
expressed  by  Justice  Selden  in  Benedict  v.  Seymour  *  that  "  a 
general  traverse,  under  the  Code,  authorizes  the  introduction  of 
no  evidence  on  the  part  of  a  defendant,  except  such  as  tends 
directly  to  disprove  some  fact  alleged  in  the  complaint^      In 

'  Dunhp  V.  Snyder,  17  Barb.  561.  ^  See  post,  section  III  of  this  cha])ter. 

'  Tliougli  in  niiuij  oilior  cases  these     \_W heeler  v.  BilUnrjs,  38  N.  Y.  3G3.J 
defenses  might  be  proved    under  tlie         *  6  IIovv.  Pr.  208. 
general  issue,  as  release,  performance, 
accord  and  satisfaction,  etc. 


SEC.  I.]  NATUKE   AISTD    USE   OF.  509 

the  same  case  a  more  strict  rule  was  intimated  in  regard  to  setting 
up  a  special  defense  than  has  been  since  thought  consistent  with 
the  liberality  of  pleading  allowed  by  the  Code;  namely,  that 
every  special  defense  which  consists  of  matter  merely  going  to 
disprove  any  material  allegation  in  the  complaint  is  defective, 
and  must  be  stricken  out  on  motion.  Such  defense  Tnust  be 
introduced  under  the  general  or  specific  denial.  This  question, 
however,  will  be  considered  more    fully  in  the  two  following 

sections  of  this  chapter.' 
[*404:]       *  I   close   these   remarks   on  the  general    nature   and 

use  of  the  answer  with  the  following  brief  extract,  from 
the  same  opinion,  which  expresses  substantially  the  views  here 
adopted,  and  states  very  concisely  and  clearly  what,  it'  is  believed, 
is  the  true  intent  of  the  Code  in  its  provisions  on  this  subject : 
"  Defenses  are  divisible  into  two  classes  : 

1.  Those  which  deny  some  material  allegation  on  the  part  of 
the  plaintiff. 

2.  Those  which  confess  and  avoid  those  allegations. 

"There  can  be  no  good  defense  which  does  not  belong  to  the 
one  or  the  other  of  these  classes.  The  Code,  following  the  order 
of  nature,  has  provided  for  both  classes  in  section  149.  "By  the 
common  law  these  two  kinds  of  defenses  had  become  more  or 
less  entangled  and  confused ;  the  Code  keeps  them  distinct.  I 
have  already  remarked  that  no  defense  which  does  not  convert  any 
material  allegation  of  the  complaint  can  be  given  in  evidence 
under  a  general  or  special  traverse.  Every  such  defense,  there- 
fore, must  be  pleaded  specially." 

The  learned  justice,  in  a  previous  part  of  this  opinion,  observes 
that  his  remarks  are  not  intended  to  have  any  bearing  upon  an 
action  which  is  equitable  in  its  nature.  It  is  submitted,  however, 
that  the  above  observations,  and  the  conclusions  arrived  at,  are 
equally  applicable  to  every  class  of  action,  whether  equitable  or 
legal. 

'  See  section  III,  entitled  What  matter  may  he  pleaded. 


610  THE  ANSWEE.  [CH.  V. 

[*405]  *  SECTION  11. 

GENERAL  AND   SPECIFIC  DENIAL. 

The  Code  provides  that  the  answer  must  contain : 

"  1st.  A  general  or  specific  denial  of  each  material  allegation  of 
the  complaint  controyerted  by  the  defendant,  or  of  any  knowledge 
or  information  thereof  sufficient  to  form  a  belief" ' 

We  shall  examine  in  this  section  these  two  different  kinds  of 
denial  allowed  by  the  Code,  in  their  order,  and  first : 

General  denial.  —  The  nature  and  uses  of  the  general  denial 
under  the  Code  have  been  considerably  discussed  in  some  of  the 
more  recent  cases.  It  had  been  supposed  at  one  time  to  be  equiv- 
alent to  the  general  issue,  and  that  many  of  the  rules  applicable 
to  that  plea  were  also  applicable  to  it.     But  this  view  has  not 

been  sustained,  and  it  may  now  be  regarded  as  settled 
[*406]  that  there  is  no  such  thing  as  the  common  *  law  general 

issue  under  the  Code,*  although  it  is  said  that  the  general 
denial  authorized  by  the  Code  is,  in  most  respects,  like  it.°  But 
the  points  of  diflPerence  have  been  very  clearly  and  distinctly 
stated,  and  consist  mainly  in  this,  that  the  general  issue  admitted 
a  gi-eat  variety  of  defenses  which  cannot  now  be  introduced  under 
a  simple  general  denial,  or  unless  specially  pleaded. 

It  is  said  by  Justice  Harris,  in  Limngston  v.  Finkle^  that 
"  under  the  general  issue  the  defendant,  after  the  plaintifiT  had 
made  a  prima  facia  case  against  him,  might  proceed  to  prove 
almost  any  thing  tending  to  show  that,  when  the  action  was 
brought,  the  plaintiif  had  no  subsisting  cause  of  action.  This  he 
would  not  be  allowed  to  do  upon  the  general  denial  under  the 

'  The  original  Code  was  as  follows  :  "  A  specific  denial  of  each  material  al- 

"  1st.  In   respect  to  each  alleji^ation  legation  of  the  complaint  controverted 

of  the  complaint  controverted  by  the  by   the   defendant    according    to    his 

defendant,  a  specific  denial  thereof,  or  knowledge,  information  or  belief,  or. of 

. .'  any  knowledge  thereof  sufficient  to  any  knowledge  or  information  thereof 

form  a  belief."  BufBcient  to  form  a  belief." 

The  amendment  of  1849  inserted  the  ■  Fay  v  .  Qriimteed,   10  Barb.  331  ; 

words  "  fjenernl  or,"  so  as  to  read  "a  Jloitghton   v.    Townsend,  8   How.   Pr. 

general  or  specific  denial."  The  amend-  441  ;  Stoddard  v.  Onondaga  Conference, 

ment  of  ISol  left  out  the  words  "  gen-  12  Barb.  576  ;  Catlin  v.  Ganter,  1  Duer^ 

eral  or,"  and  the  amendmen   of  ISi:^  253. 

restored  them  again,  as   the  section  ^  Livingston,  v.  Finkle,  8  How    Pr. 

now  stands.  486. 

The  amendment  of  1851  made  this  *  8  How.  Pr.  486. 
clause  of  the  section  read  as  follows : 


SEC.  II.]  GEISTEEAL   DENIAL.  511 

Code.  In  such  a  case  the  only  thing  at  issue  would  be  the  truth 
of  the  matters  alleged  in  the  complaint."  Other  cases  fully  sustain 
and  carry  out  these  propositions,  especially  the  cases  of  Fay  v. 
Grlmsteed,'  Houghton  v.  Townsend,^  Catlin  v.  Qunter,^  Brazil 
V.  Isham*  and  Stoddard  v.  Onondaga  Annual  Conference."  In 
the  latter  case,  indeed,  it  is  said  that  the  principal  change  made 
by  the  Code  in  the  subject  of  pleading  consists  in  abol- 
[*407]  ishing  this  mode  of  presenting  *  defenses,  or,  as  it  is  better 
expressed  in  the  language  of  Justice  Johnson,  "  the  for- 
mer rule,  as  to  the  matters  of  fact  which  were  and  which  were 
not  properly  pleadable,  has  not  been  essentially  changed  or  modi- 
fied, except  as  to  matters  in  bar  of  the  action  which  might  for- 
merly be  proved  under  the  general  issue ;"  and  the  conclusion  is 
arrived  at,  and  the  general  rule  laid  down  that,  inasmuch  as  there 
is  now  no  general  issue,  "  every  matter  of  fact  which  goes  to  defeat 
the  cause  of  action,  and  which  the  plaintiff  is  not  under  the  neces- 
sity of  2^'romng  in  order  to  mahe  out  his  case,  must  he  alleged  in 
the  answer J^ 

The  phraseology  in  which  this  proposition  is  clothed  may,  per- 
haps, suggest  criticism.  Its  meaning,  however,  I  apprehend  is 
that  every  fact  which  the  plaintiff,  in  the  first  instance,  is  under 
the  necessity  of  proving  to  sustain  his  action,  or,  every  material 
fact  which  rmost  or  7nay  be  alleged  in  a  good  complaint,  is  the 
proper  subject  of  a  denial ;  but  that  all  other  matters,  that  is  to 
say,  matters  which  do  not  go  merely  to  controvert  a  fact,  or  the 
facts  in  the  complaint,  must  be  set  up  affirmatively  in  the 
answer,'  and  the  proposition,  in  a  general  sense,  it  is  thought 
may  be  sustained  on  both  principle  and  authority. 

The  reason  for  thus  requiring  all  matters  of  defense,  outside  of 
the  complaint,  to  be  pleaded,  contrary  to  the  common  law  and 
in  accordance  with  the  equity  practice,  is  very  correctly  stated  by 
Justice  Brown  in  Fay  v.  Grimstced:  "  It  is  one  of  the 
[*408]  ^principal  objects  of  the  Code  of  Procedure  to  abrogate 
the  old  forms  of  pleading,  and  to  bring  the  parties  to  a 
plain,  concise  and  direct  statement  of  the  facts  which  constitute 

'  10  Barb.  S.  C.  321,  *  This   is   the   rale   in   the   case  of 

*  8  How.  Pr.  441 .  Benedict  v.  Seymour,  6  How.  298,  cited 
2  1  Duer,  253.  ante,  page  403,  marg.  p. 

*  1  Smith's  Com.  PI.  437  [13  N.  Y.  9].  '  10  Barb.  S.  C.  329. 
»  12  Barb.  S.  C.  575. 


612  THE   ANSWER.  *    [CH.  V. 

the  cause  of  action  or  defence,  in  place  of  the  general  statement 
heretofore  in  use.  The  form  of  allegation  and  counter  allegation 
"was  adopted  with  a  view  to  compel  the  adverse  parties  to  disclose 
to  each  other  the  facts  upon  which  thej  relj,  to  uphold  the  claim 
upon  the  one  side,  and  to  maintain  the  defense  upon  the  other ; 
so  that  each  may  know  what  he  may  be  required  to  establish  or 
repel  bv  the  proofs  upon  the  trial.  In  this  respect  the  pleadings 
are  similar  to  those  which  obtained  in  courts  of  equity." 

From  these  considerations  a  tolerably  correct  idea  may  be 
formed  of  the  nature  and  use  of  the  general  denial  allowed  by 
the  Code.  It  is,  in  no  respect,  so  far  as  the  introduction  of  evi- 
dence under  it  is  concerned,  the  general  issue  of  the  old  practice. 
It  is  merely  an  aggregation  of  specific  denials,  allowed,  it  would 
seem,  more  for  convenience  in  practice  than  as  affording  any 
advantage  to  the  defendant  over  the  form  of  special  denial,  in  the 
introduction  of  his  evidence ;  and  the  effect  of  a  general  denial  is 
precisely  the  same  as  that  of  a  series  of  speoific  denials  to  each 
and  every  fact  in  the  complaint. 

But  the  defendant  is  not  at  liberty  to  use  both  forms  of  denial 
to  the  same  facts ;  that  is  to  say,  if,  in  his  answer,  he  sets  up  a 
general  denial,  he  cannot  go  on  to  deny  specially  the  allegations 
in  detail.  This  would  be  unnecessary  repetition  and  redundant. 
The  Code  allows  a  defendant,  says  the  court  in  Dennison 
[*409]  V.  Dennison^  to  elect  whether  he  will  *answer  by  a  general 
or  specific  denial,  and  having  elected  he  is  bound  by  it. 
He  cannot  answer  in  both  modes. 

[A  denial  of  each  and  every  material  allegation  in  the  com- 
plaint is  evasive  and  obnoxious  to  a  motion  that  it  be  made  more 
definite  and  certain.  It  in  no  way  points  out  what  allegations 
the  defendant  deems  material.'] 

[In  the  case  of  George  ^Y.  Chase  v.  James  C.  Burnside  (MS.), 
decided  at  the  Otsego  special  term  the  second  Tuesday  of  March, 
1854,  the  answer  denied  "  each  and  every  allegation  set  forth  in 
the  plaintiff's  complaint,  except  what  is  hereinafter  expressly  and 
absolutely  admitted."  A  motion  was  made  to  make  this  portion 
of  the  answer  more  definite  and  certain.     Crippen,  J.,  said:    K 

'  9  How.  Pr.  346.  »  Mattison  v.  Smith,  19  Abb.  288, 1 

Rob.  706. 


SEC.  IT.]  GENERAL   DENIAL.  613 

this  form  of  pleading  is  allowed  it  casts  upon  tlie  plaintiff's  attorney 
the  labor  and  responsibility  of  analyzing  his  adversary's  pleadings 
and  comparing  its  admissions  and  denials  with  the  various 
allegations  of  the  complaint,  in  order  to  determine  what  por- 
tions of  it  liave  been  admitted  and  what  denied  absolutely. 
The  object  of  our  present  system  is  to  require  the  pleadings 
to  be  made  simple  and  plain,  so  that  the  parties  may  know 
what  points  are  admitted,  and  what  denied  or  contradicted,  and 
thus  be  enabled  to  prepare  for  the  trial.  The  counsel  for  the 
respective  parties  may  differ  in  opinion  as  to  the  allegations  which 
have  been  expressly  and  absolutely  admitted  by  the  defendant's 
answer.  The  admissions  in  the  different  portions  of  the  answer 
are  intermixed  with  other  allegations  of  matters  of  defense,  so  as 
to  render  such  admissions  of  little  or  no  avail  to  the  plaintiff. 
If  the  defendant  should  read  such  admissions  as  express  and  abso- 
lute on  his  part,  independent  of  the  matters  of  defense  with  which 
it  is  connected,  then  it  might  answer  the  purpose  of  an  admission 
on  the  trial  in  behalf  of  the  plaintiff',  but  if  the  defendant's  counsel 
should  insist,  as  he  very  likely  would,  that  the  whole  admission 
must  be  taken  together  as  set  out  in  the  answer,  it  would  be  of 
no  avail  to  the  plaintiff.  If  the  defendant  intended  to  admit  any 
allegation  of  material  matter  set  up  in  the  complaint,  such  admis- 
sion should  be  definite  and  certain.  The  motion  is  ^ranted  with 
ten  dollars  costs,  with  leave  to  the  defendant  to  amend  his  answer 
in  twenty  days  on  payment  of  the  costs  of  the  motion.  From  this 
the  defendant  appealed  to  the  general  term  of  the  sixth  judicial 
district,  where  the  order  was  affirmed  at  the  July  general  term, 
1854,  Shankland,  J.,  writing  the  following  opinion : 

"  That  portion  of  the  first  answer,  ordered  to  be  made  more 
definite  and  certain,  is  uncertain,  and  was  properly  disposed  of  in 
the  court  below,  or,  more  properly,  it  should  have  been  stricken  out 
under  the  first  clause  of  section  160,  of  the  Code.  The  defendant 
cannot,  in  that  mode  of  answering,  deprive  the  plaintiff'  of  the 
benefit  of  section  168,  of  the  Code,  which  declares  that  every 
material  allegation  of  the  complaint  not  controverted  by  tlie  answer 
as  prescribed  by  section  149  shall,  for  the  purposes  of  the  action, 
be  taken  as  true.  The  plaintiff  cannot,  therefore,  be  limited  to 
express  admissions  in  the  answer.  Whether  admitted  or  not, 
65 


514  TH^'  ANSWEE.  [cn.  V. 

in  express  words,  if  not  denied  it  is  i^pso  facto  admitted.  But, 
again,  the  answer  nowhere  contains  an  express  and  absolute  admis- 
sion of  any  thing  as  set  forth  in  the  complaint,  and,  as  the  answer 
is  in  that  sense  a  general  denial  of  the  complaint,  the  part  objected 
to  is  uncertain. 

In  the  case  of  James  Cullen  x.  Lyman  Toles  (MS.),  decided  at 
the  Chenango  general  term  (1856),  the  answer  set  out  a  special 
contract,  in  part  like  that  in  the  complaint,  and  then  added,  "  and 
for  a  further  answer  this  defendant  denies  every  allegation  in  the 
third  paragraph  and  third  and  fourth  folios  of  the  said  complaint, 
which  is  inconsistent  with  the  matters  and  things  in  this  answer 
contained."  The  special  term  refused  to  order  this  to  be  made 
more  definite  and  certain.  On  appeal  this  order  was  reversed, 
and  the  defendant  ordered  to  do  so,  the  com't,  per  Shaistklajstd, 
J.,  saying: 

"  By  the  149th  section  it  is  prescribed  that  the  answer  must 
contain  a  general  or  specific  denial  of  each  material  allegation  in 
the  complaint  controverted  by  the  defendant.  In  this  case  the 
count  attempted  to  be  answered  is  on  a  special  contract,  and  the 
answer,  instead  of  a  general  or  specific  denial  of  the  allegations, 
sets  out  a  contract  in  part  like  the  one  stated  in  the  complaint, 
avers  its  performance  by  the  defendant,  its  non-performance  by 
the  plaintifiT,  and  claims  to  recoup  defendant's  damages,  and 
then  says :  "  And  for  a  further  answer  this  defendant  denies 
every  allegation  in  the  third  paragraph  and  third  and  fourth 
folios  of  the  said  complaint,  which  is  inconsistent  with  the  facts, 
matters  and  things  in  this  answer  contained."  I  hold  such  an 
answer  to  be  indefinite  and  uncertain,  because  it  nowhere  appears, 
excf-pt  ly  inference,  that  the  defendant  intends  to  deny  that 
tliere  is  such  a  contract  as  plaintiif  alleges ;  nor  that  defendant  has 
broken  the  same ;  nor  that  the  contract  set  up  in  the  answer  is 
part  of  the  same  contract  set  up  in  the  complaint ;  nor  does  it 
appear  by  the  answer  what  allegations  in  the  complaint  are  incon- 
sistent with  the  facts  set  up  in  the  answer.  In  short,  the  answer 
does  not  point  out  what  allegations  in  the  complaint  it  intends  to 
deny.  The  answer  is  in  effect  this  :  The  defendant  alleges  certain 
facts  as  a  counter-claim,  and  then  adds,  if  the  plaintiffs  allegor- 
tiojis  are  consistent  with  this  counter-claim,  I  admit  them,  and,  if 


SEC.  II.]  GEIN'ERAL   DENIAL.  615 

inconsistent,  I  deny  tliein,  a7id  we  will  have  this  question  of  C07i- 
sistency  decided  on  the  trial.  I  hold  that  the  pleader  should  deny, 
in  plain  terms,  what  he  does  not  intend  to  admit,  and  not  have  his 
denial  depend  on  a  contingency,  or  the  consistency  or  inconsistency 
of  his  statement  of  facts  with  the  plaintiff's  statement  thereof. 
The  order  appealed  from  should  be  reversed,  with  ten  dollars 
costs  of  this  appeal."  ' 

A  general  denial,  well  pleaded,  puts  in  issue  every  material 
fact  alleged  by  the  plaintiff  in  his  complaint  [including  wliat  is 
impliedly  averred. °]  In  an  action  for  the  conversion  of  property, 
similar  to  the  former  action  of  trover,  an  answer  of  general  denial 
takes  issue,  not  only  upon  the  conversion  of  the  property,  but  also 
upon  the  plaintiff's  title,  and  evidence  to  controvert  such  title  may 
be  introduced  under  such  denial.  So  held  in  Rohinson  v.  Frost* 
at  a  general  term  in  the  fourth  district. 

But  it  is  to  be  observed,  that  such  general  denial  (and  the  rule 
is  the  same  as  to  specific  denial)  puts  in  issue  facts  only,  and  not 
mere  conclusions  of  law.*' 

[The  test  by  which  to  determine  whether  the  denials  or  state- 
ments in  an  answer  are  material  or  relevant  is,  to  inquire  whether 
they  tend  to  make  or  constitute  a  defense.  If  they  do  so  tend 
they  cannot  be  considered  irrelevant.  A  denial  that  the  defend- 
ants were,  during  the  month  of  March,  1854,  copartners,  and  as 
such  engaged  in  doing  business  at  P.,  in  the  State  of  California, 
is  material.*  So  where  the  answer  alleged  that  the  defendants 
had  never  been  within  the  State  of  California,  and  had  never 
personally  transacted  any  business  tlierein,  and  had  no  personal 
knowledge  of  what  therein  occurred ;  and  that  they  had  no 
personal  knowledge  and  no  information  sufficient  to  form  a 
belief,  and,  therefore,  they  denied  that  at  the  time,  etc.,  was  held 
good.' 

Parties  are  bound  to  answer  positively  as  to  facts  within  their 
own  knowledge ;  but  they  are  not  presumed  to  recollect  the  date 
or  contents  of  wi-it'en  instruments  not  in  their  possession  or  con- 
trol, as  if  it  be  lost."     But  a  denial  by  a  defendant  "according  to 

'  Ent  Bee  post,  marq.  p.  464,  et  seq.  *  As  to  what  are  fads,  as  contradis- 

-  Prindle  v.  GarutJiers,  15  N.  Y.  429  ;  tinguislied  from  legal  conclusions,  see 

Bellingp.r  v.  Craigiie,  31  Barb.  534.  pages  244,  mn.r'-i.  p.,  et  seq. 

*  14  Barb.  S.  C.  537;  and  see  Oorwin  '"  Dowtn  v.  Dinsmnre-,  83  Barb.  8(5. 

V.  Coricin,  D  id.  219.  «  Kduxjg  v.  Baker,  15  Abb.  e«. 


516  THE   ANSWER.  [CH.  V. 

his  recollection  and  belief"  is  evasive  and  insufficient.'  The 
Code  requires  a  direct  and  positive  denial.  "When  the  defendant 
merely  "  says  he  denies "  certain  allegations,  this  is  a  negative 
pregnant  and  not  a  denial."  The  denial  by  a  defendant  brought  in 
by  supplemental  complaint  of  any  knowledge  or  information, 
sufficient  to  form  a  belief  as  to  a  fact  admitted  by  the  original 
answer,  does  not  put  such  fact  in  issue.^  Where  a  complaint 
stated  a  promissory  note,  whereby  the  maker  promised  to  pay  the 
defendants  named,  "  trading  and  doing  business  under  the  partner- 
ship name  or  firm  of  C.  I.  &  Co.,  and  that  said  note  was  duly 
indorsed  by  said  defendants  by  their  said  partnership  name,"  it 
was  held  that  an  answer  denying  "  the  indorsement  in  the  com- 
plaint alleged  "  did  not  put  the  partnership  in  issue.*  Where  a 
complaint  averred  that  the  plaintiff,  as  the  treasurer  of  a  cor- 
poration acting  under  the  orders  of  its  directors,  expended  $800, 
in  its  behalf,  over  and  above  his  receipts  from  its  funds,  and  that 
the  corporation  was  justly  indebted  to  him  in  the  sum  of  $700, 
and  the  answer  denied  any  knowledge  or  information  that  the 
corporation  was  indebted  to  the  plaintiff  in  the  sum  of  $700,  or 
any  other  sum,  it  was  held,  where  plaintiff  went  to  trial,  a  sufli- 
cient  denial.*  An  allegation  that  plaintiff  sold  property  belonging 
to  the  defendants  for  a  certain  sum,  and  has  had  the  use  and  interest 
thereon  since  said  money  was  received,  is  sufficiently  controverted 
by  a  denial  that  defendants  sold  the  plaintiff's  property,  or  that 
they  received  any  money  whatever  therefor  to  the  plaintiff's  use.* 
Under  a  denial,  of  an  indorsement,  the  defendant  may  show  that 
there  was  no  delivery  of  the  indorsement."  Where  the  defendant 
wishes  to  deny  any  knowledge  or  information  sufficient  to  form 
a  belief,  he  must  deny  that  he  has  either.  Where  he  denied  a 
fact  alleged  in  the  complaint  for  want  of  knowledge  sufficient  to 
form  a  belief,  it  was  held  that  the  denial  was  insufficient  and  the 
allcsration  was  admitted.*  The  cases  as  to  Avhat  are  and  what  are 
not  valid  denials  are  so  fully  collected  in  the  various  annotated 

'  Taijlor    V.  Luther,   2  Sumn.   228,  '  Simmons  v.  Sisson,  26  N.  T.  264. 

Bae  pofit,  4.30,  marg.  p.  *  Robinson  v.    The    Corn    Exchange 

*  I^Mke  V.  FJdrtd,  18  How.  240 ;  but  Ins.  Co.,  1  Abb.  N.  S.  186. 

see  to  the  contrary,  Chapman  v.  (Jhap-  '  Benton    v.    Peters,    Law    Eep.,  5 

man,  34  id.  281.  Queen's  Bench,  473. 

^Forbes  v.    Waller,  25  N.   T.  430;  « //er/e  v.  5(?«es,  33  How.  366, 2  Daly, 

Livesey  v.  Harding,  Tamlyn,  460.  231. 

«  Anctble  V  Conklin,  25  N.  Y.  470. 


8EC.  II.]  GENERAL   DENIAL.  517 

Codes  that  it  is  unnecessary  to  repeat  tliem  here.'  A  defendant 
•will  not  be  allowed  to  deny  any  knowledge  or  information  suffi- 
cient to  form  a  belief  as  to  any  fact  which  he  is  presumed  to  know, 
or  when  he  has  the  means  of  information  within  his  power.' 
Such  an  answer,  however,  is  ,^ham  not  frivolousJ''] 

Thus  it  has  been  held  in  several  cases  that  a  mere  denial  of  the 
ownership  of  a  promissory  note,  or  that  the  plaintiff  is  the  lawful 
holder  thereof,  without  controverting  any  fact  set  forth  in  the 
complaint,  or  alleging  any  fact  in  the  answer  going  to  show  that 
some  other  person  is  the  real  owner  and  party  in  interest,  is  irrele- 
vant and  frivolous  and  will  be  struck  out  on  motion.  This  is 
said  to  be  the  constant  practice  in  the  N.  Y.  Superior  Court,*  and 
has  been  followed  in  some  instances  even  where  the  answer 
[*4:10]  is  verified,  as  in  the  cases  oiFleuryY.  Roget^  and  '^IHeury 
V.  Brown^  But  the  rule  seems  properly  applicable  only 
to  those  cases  in  which  the  defendant  merely  denies  the  owner- 
ship of  the  note,  leaving  uncontroverted  the  allegations  in  the 
complaint  which  show  the  plaintiff's  possession  and  property,  as 
in  the  case  of  Higgins  v.  Rockwell.''  Where  the  complaint,  with- 
out stating  facts  to  show  ownership,  merely  alleges  that  the  plain- 
tiffs are  the  lawful  holders  and  owners  of  the  note,  it  would  seem 
from  the  recent  case  of  the  Metropolitan  Bank  v.  Lord^  that  a 
denial  that  the  plaintiffs  are  the  owners  and  holders  would  be 
sufficient  to  raise  an  issue,  or  at  least  would  not  be  regarded  as  a 
frivolous  answer. 

The  reason  assigned  in  Catlin  v.  Gunter^  why  such  denials  are 
insufficient  is  that  they  controvert  no  material  fact.,  but  are 
denials  merely  oi  conclusions  of  law^  which  the  court,  instead  of 
receiving  evidence  in  support  of  them  on  the  trial,  is  bound  to  dis- 
regard as  irrelevant  and  nugatory ;  and  the  same  rule  has  been 

'  VoorMes'  Code,  §  149,  and  notes,  ^  9  How.  Pr.  215-217.  But  see  con- 
Wait's  Code,  id.  tra,  Beach  v.  Gallup,  2  Code,  6G  :  Tem- 

'^  Chapman  v.  Palmer,  13  How.  37 ;  pie  v.  Murray,  6  How.  329  ;  Snyder  v. 

Hance  v.  Rumming,  2   E.  D.    Smith,  White,  id.  321  ;  and  see  this   subject 

48 ;  Mott  V.  Burnett,  2  id.  50.  further  discussed  post,  page  419. 

3  Lear.h  v.  Boy n ton,  3  Abb.  1.  •>  2  Duer,  650. 

4  CaMin  v.  Ounter,  1  Duer,  265  [but  »  1  Abb.  Pr.  185.  [Prindle  v.  Gar- 
see  reversal,  11  N.  Y.  368] ;  Higgms  v.  ruther.%  15  N.  Y.  429. J 

Rockwell,  2  id.  650;  Flammerv.  Kline,  '  1  Duer,  264  ;  and  see  on  this  sub- 
9  How.  Pr.  216.  ject,  under  the  head  of  Specific  Denials, 

5  5  Sandf.  616 ;   affirmed  by  al]    the     post,  pages  419-421. 
judges  of  the  Superior  Court  on  con- 
sultation. 


618  THE  AT^SWER.  [CH,  V. 

followed  in  the  supreme  court,  in  the  late  case  of  Seeley  v.  Engle,^ 
in  which  it  was  held  that  an  allegation  in  the  answer  that  the 
plaintiff  "  is  not  the  lawful  o^^^ler  and  holder  of  the  note,"  is 
insufficient  to  admit  evidence  that  the  plaintiff  is  not  such  owner 
aud  holder.  The  same  rule  has  been  applied  in  regard  to 
[*411]  denials  oi  non-payment  and  indebtedness,  as  in  *Edso7iY. 
Dillaye^  in  which  such  denials  were  adjudged  frivolous 
by  Justice  Welles,  and  ordered  to  be  struck  out.  No  new 
matter  it  was  said  would  be  admissible  in  e\adence  under  them. 
The  defendant  could  not  prove  payment  or  any  other  imaginable 
defense,  because  not  set  up  in  the  answer.  The  making  of  the 
note  being  admitted  and  no  new  fact  being  set  up  in  the  answer 
why  the  defendant  ought  not  to  pay  it,  his  liability  to  pay  it  is  a 
legal  conclusion,  from  which  he  cannot  escape.  Mere  general 
denials  of  indebtedness  and  non-payment,  are,  therefore,  not  avail- 
able for  any  purpose. 

It  is  certainly  difficult  to  draw  the  line  of  distinction  in  these 
and  similar  cases,  between  legal  conclusions  which  a  general  or 
specific  denial  does  not  reach  and  facts  which  such  a  traverse 
puts  in  issue,  and  which  may  be  disproved  under  it,  and  the 
cases  have  not  been  entirely  consistent  on  this  point.  Thus  in 
Robinson  v.  Frost^  the  plaintiff's  title  in  an  action  for  the  con- 
version of  personal  property  was  held  controverted  under  a 
general  denial  as  a  fact.  And  in  Heine  v.  Anderson*  in  a 
similar  action,  it  is  said  that  a  general  averment  of  ownership  is 
sufficient  without  setting  forth  in  the  complaint  the  plaintiff's 
title,  and  such  averment  of  course  is  the  subject  of  a  traverse  or 
denial.'  Even  in  an  action  to  recover  lands,  where  the  plaintiff 
claimed  the  lawful  title,  it  has  been  held  as  in  Corioin  v. 
[*-il2]  Corvnn*  *  that  the  defendant  may  controvert  the  allega- 
tion of  title  in  express  loords,  or  may  set  out  i\\e  facts  to 
show  that  the  plaintiff  has  not  the  title.  And  yet,  in  the  class  of 
cases  above  noticed  in  actions  on  bills  and  notes,  a  denial  of  the 
ownership  is  considered  nugatory,  and  the  facts  showing  title  out 
of  the  plaintiff  are  required  to  be  pleaded.     The  subject,  in  what- 

'  17  Barh.  S.  C.  580  [but  see  reversal,  ^  14  i^^rb.  536. 
18  N.  Y.  5421;  see,  also,  Leffcrts  v.  •»  2  Duer,  ,S18. 
SneiHl-er,  1  .^bb.  Pr.  41  *  See,  also,  Ooram  v.  Gary,  1  Abb 

»  8  How.  Pr.  273  .  see,  also,  Brnkr  v.  Pr.  R.  285. 
Cockroft,  10  How.  277,  1  Abb.  Pr.  2G3.         •  9  Barb.  219,  Gen.  T.,  4tb  District. 


SEC.  II.]  GENERAL   DENIAL.  519 

ever  aspect  it  is  viewed*  is  not  free  from  difficulties,  and  perhaps 
no  universal  rules  can  be  laid  down  by  which  to  test  in  all  cases 
the  sufficiency  of  a  denial.'  We  shall  have  occasion  again  to 
allude  to  this  subject  when  we  come  to  consider  another  branch 
of  it,  namely,  what  matters  must  be  alleged  in  the  answer  affirm- 
atively by  way  of  defense.^  It  is,  perhaps,  sufficient  to  remark 
here,  that  a  general  denial,  under  the  present  system,  is  not,  in 
aL  cases,  the  safest  mode  of  presenting  an  issue  on  the  part  of  the 
defendant.  Where  a  reasonable  doubt  arises  whether  the  allega- 
tion which  he  wishes  to  disprove  is  really  a  legal  conclusio7i  or 
not,  it  will  be  advisable,  instead  of  using  the  general  traverse  of 
the  Code,  to  set  forth  briefly  the  simple  facts  —  not  tlie  mere  evi- 
dence of  the  facts  —  on  which  he  relies  to  disprove  such  allegation. 
[In  suits  by  or  against  corporations  created  by  or  under  any 
statute  of  this  State,  it  is  not  necessary  to  prove,  on  the  trial  of 
the  cause,  the  existence  of  such  corporation,  unless  the  defendant 
shall  have  alleged  in  the  answer  in  the  action  that  the  plaintiffs  or 
defendants,  as  the  case  may  be,  are  not  a  corporation.^  So  that  if 
a  defendant  desire  to  show  that  a  plaintiff  or  defendant  is  not  a 
corporation,  it  is  not  sufficient  to  deny  the  allegations  of  incorpo- 
ration, but  Qiul  tiel  corporation  must  be  specially  pleaded.  Indeed, 
it  is  not  necessary  that  the  complaint  should  contain  any  allegations 
of  incorporation,"  The  statute  does  not  apply  to  foreign  corpo- 
rations.^ The  statute  provides*  that  the  certificate  of  a  notary 
pubhc,  of  the  protest  of  a  promissory  note  or  bill  of  exchange, 
shall  be  presumptive  evidence  of  the  facts  contained  in  such  cer- 
tificate,' unless  the  defendant  shall  annex  to  his  plea  an  affidavit 
denying  the  fact  of  having  received  notice  of  non-acceptance  or 
non-payment  of  such  note  or  bill.  When  the  defendant  desires 
to  compel  the  plaintiff  to  produce  the  notary  as  a  witness,  such  an 
affidavit  should  thei'efore  be  annexed  to  the  answer ;'  although  if 
he  do  not  he  may  controvert  the  facts  stated  in  the  certificate.*    A 

'  PrindU  v.  CarutTiers,  15  N.  T.  429  ;  ^  National  Bank  v.  Orcott,  48  Barb. 

Bellinger  v.  Craigue,  31  Barb.  534.  256. 

-  Post,  section  3  of  this  chapter  ;  and  ''Laws  1833,  ch.  271,  ^  8,  4  Edm. 

see  as  to  Specific  Denials,  post,  p.  419,  Stat.  619. 

et  seq.  '  Seneca  County  Bank  v.  Neass,  5 

»  2  R.  S.  458,  §  3,  as  amended  in  1864,  Denio,  334,  8  N.  Y.  442. 

p.  1006,  6  Edm.  Stat.  296.  «  Oawiry  v.    Doane,   48   Barb.  155 ; 

■•  Pho'iiix  Bank  v.  Donnell,  40  iST.  Y.  Dunn  v.  Devlin,  2  Daly,  122. 

410 ;  Lighte  v.  Everitt,  etc.,  5  Bosw.  716.  '  Oawtry  v.  Doane,  48  Barb  155. 


520  THE   ANSWEE.  [CH.  V. 

denial  in  the  answer  raises  the  issue ;  the  affidavit  merely  changes 
the  burden  of  proof.'  A  verification  of  an  answer  denying  pro- 
test is  not  a  sufficient  affidavit ;  there  must  be  a  separate  affidavit 
of  the  facts  required  by  the  statute.*  An  affidavit  by  the  defend- 
ant that  he  received  notice  of  protest,  but  alleging  "  the  want  of 
sufficient  knowledge  to  form  a  belief  whether  or  not  he  received 
due  notice  of  said  protest,"  is  not  sufficient/  An  affidavit  by  an 
indorser  denying,  according  to  his  knowledge,  information,  recol- 
lection and  belief,  the  receipt  of  any  notice,  has  been  held  to  be 
sufficient.*  Merely  setting  up  in  an  answer  a  statement  of  facts 
inconsistent  with  the  allegations  in  the  complaint,  does  not  amount 
to  a  denial  of  the  latter.^  If  the  answer  merely  implies  that  the 
allegation  is  controverted,  or  justifies  an  inference  that  such  is  or 
will  be  claimed  to  be  its  eff'ect,  it  will  not  be  construed  as  a  denial.*] 

Sjpecific  denial. — Under  the  former  course  of  proceedings  in 
actions  at  law  there  were  three  descriptions  of  pleas  in  bar : 

1st.  The  general  issue. 

2d.  A  denial  of  a  particular  allegation  in  the  declaration, 
P4rl3]       *3d.  A  special  plea  of  new  matter  not  apparent  upon 
the  face  of  the  declaration.'' 

The  first  of  these,  the  general  traverse,  or  issue,  has  been  already 
considered,  and,  as  we  have  seen,  in  some  respects  answers  to  the 
general  denial  of  the  Code.  The  second  form  of  defense,  above 
mentioned,  answers  to  the  specific  denial  of  the  Code.  This  form 
of  denial,  in  some  of  its  uses,  under  the  new  system,  is  not  unlike 
the  common  and  special  traverse^  of  the  old.     Thus,  under  the 

'  Ward  V.  Waterhouse,  2  Rob.  653.  no  legal  notice  has  been  received,  or 

'  Landng  v.    Cole}/,    13    Abb.    272  ;  that  none  was  legally  served.    Dresser 

Young  v.  Oatlett.Q  Duer.  437;  Arnold  v.  Stansfield,  14  Mees.  &  Welsh.  822. 

V.   The  Rock,  etc.,  5  id.  207;  Burrall  If,  however,  a  valid  notice  be  properly 

y.  Be  Groot,  5  id.  37'.).     The  affidavit  and  legally  sent,  the   affidavit   could 

may  be  in  the  following  form:   Title  not  be  made,  although  it  should  not  be 

of  Cause.     County,  ss. ,  received  until  a  long  time  after  it  was 

being  sworn,  says,  That  he  is  the  defend-  sent.    Union  Bank  v.  Gregory,  46  Barb. 

ant  in  the  above  entitled  action  ;  that  99,  102. 

he  never  received  any  notice  of  the  ■*  Barker  v.  Cassidy,  16  Barb.  177, 183. 

non-acceptance  (or  non-[)ayment)  of  tlie  ^  Wood  v.    Whiting,   21    Barb.    190; 

bill  of  exchange  (or  promissory  note)  Ilamilton  v.  Hough,  13  How.  14. 

on  which   this   action   is   brought.     3  *  West  v.  American  Exchange  Bank, 

Bur.  Pr.  35,  Yates's  PI.  345.  44  Barb.  170.     See  Isles  v.   Tucker,  5 

^  Pierson  v.  Boyd,  2  Duer,  33.    If  an  Duer,  393  ;  Oilbert  v.  Cram,  12  How. 

illegal  notice  be  received,  or  a  legal  455 ;  Allen  v.   Mercantile  Ins.  Co.,  46 

one  bi;  illi!gal1y  servf;d,  the  party  can  Barb.  042. 

Bafely  make  the  affidavit  in  the  form  '  1  Chit.  PI.  472. 

above  given.     The  denial  means  that  "  See   Steph.    PI.  153  to  178.      The 


SEC.  II.l  SPECIFIC   DElSriAL.  521 

old  pleadings,  a  party  might  deny  any  material  and  issuable 
allegation  in  his  opponent's  pleading,  and  this  although  the 
matter  was  stated  with  more  preciseness  and  particularity  than 
was  necessary.*  So,  whatever  was  necessarily  understood, 
intended,  or  implied,  from  the  plea,  was  traversable  as  much  as 
if  it  were  expressly  alleged."  But  matter  not  necessarily'  implied 
was  not  traversable  ;*  nor  could  mere  matter  of  aggravation,  or 
laere  inducement  or  explanatory  matter,  not  in  itself  essential  tc 
t'ac  substance  of  the  case,  be  traversed  ;  *  nor  immaterial  matter," 
nor  a  mere  matter  or  conclusion  of  law.* 

These  rules  are  still  generally  applicable  under  the 
[•■-i:14J  Code.  A  specific  denial  may  be  made  to  any  *one 
material  issuable  allegation  in  the  complaint ;  as,  in  an 
action  on  contract,  setting  forth  a  consideration,  the  defendant 
may  simply  deny,  if  he  please,  and  take  issue  upon  the  fact  of 
Ihe  consideration,  or  the  fact  of  the  breach  of  contract.  But  the 
specific  denial  of  the  Code  is  broader  than  tlie  special  denial  of 
the  common  law.  The  defendant  may  now  traverse  or  deny 
specifically  one,  or  any  number  of  the  material  allegations  of  the 
complaint,  or  each  or  all  of  them  separately,  if  he  chooses,  as 
heretofore  in  an  answer  in  chancer3^  Thus  in  Otis  v.  Hoss ''  it 
was  held  that  an  answer  does  not  contain  a  double  defense  because 
it  denies  two  facts,  both  of  which  are  necessary  for  the  plaintiff 
to  prove  to  make  out  his  cause  of  action ;  as  in  a  complaint  for 
false  representation,  the  answer  may  specifically  deny  the  allega- 
tion that  the  representations  were  made,  and  also  the  allegation 
that  such  representations  were  false. 

The  specific  denial  of  one  material  issuable  fact  reduces  the 
question  in  controversy  to  a  single  point,  which,  as  it  is  found  in 
favor  of  one  party  or  the  other,  is  decisive  of  the  action,  or  of  the 
plaintiff's  right  to  recover  to  the  extent  of  the  particular  relief 

common  traverse  was  mainly  in  use.  '  Id.,  3  Saund.  40,  G  East,  411, 1  Lord 

It  was  a  denial  by  way  of  exprer;s  con-  Rayra.  30   [15  N.  Y.  429,  31  Barb.  534, 

tradiction,  in  terms,  of  the  allegation  post,  422,  mnrg  pp.] 

controverted.      It  was  usually  in  the  *  1  Saund.  312. 

negative  form,  as  that  "  the  defendant  *  Steph.  PI.  284,  385. 

never  was  indebted,"  etc.     If,  however,  ^  Sands  v.  St.  John,  23  How.  140,  36 

the  allegation  traversed  was  negative.  Barb.  28. 

as  in  the  plea  of  the  statute  of  limita-  «  1  Saund.  33,  note  5,  1  Chit.  PI.  611. 

tions,  the  traverse  was  affirmative.  ''  8  How.  Pr.  19B,  see,  also,  3  Code  R, 

'  20  Johns.  406,  1  Chit.  PI.  610.  175, 4  How.  Pr.  155. 

66 


522  THE   ANSWER.  [CH.  V. 

demanded.  And  so,  also,  tlie  denial  of  more  than  one  material 
issuable  fact,  leaving  others  in  the  complaint  unanswered ;  the 
issue  is  exclusively  formed  upon  the  fact  or  facts  so  denied ;  for, 
by  the  Code,  every  material  allegation  in   the  complaint,  not 

controverted,  is,  for  the  purpose  of  the  action,  taken  as 
[*415]  true.'      A   similar   rule   applied   to   the   common  *law 

traverse ;  and,  therefore,  it  was  thought  to  be  of  import- 
ance for  the  defendant,  in  traversing  one  of  several  facts,  to  deny 
the  one  "  most  open  to  objection,  for  he  admits  those  not 
expressly  denied."  But  the  omission  to  answer  an  immaterial 
matter,  or  mere  conclusion  of  law,  or  any  thing  not  properly  in. 
the  complaint,  is  not  an  admission  thereof,  and  cannot  prejudice 
the  defendant  on  the  trial."  Indeed,  such  immaterial  matter 
should  not  properly  be  traversed  or  denied  at  all.  This  was  the 
rule  of  common-law  pleadings ;  the  defendant  was  not  allowed  to 
traverse  an  allegation  altogether  i'm,7naterial,  or  take  issue  upon 
matter  not  decisive  of  the  merits,  as  mere  matter  of  aggravation, 
not  going  to  the  cause  of  action,  or  mere  inducement,  or  explana- 
tory matter  not  in  itself  essential  to  or  of  the  substance  of  the 
case.'  The  rule  seems  to  be  equally  applicable  to  the  Code,  and 
that,  too,  f]-om  the  very  language  of  the  section  under  considera- 
tion. It  is  said,  however,  in  the  case  of  King  v.  The  Utica  Ins. 
Co.*  that,  although  the  answer  should  properly  deny  material 
allegations  only,  yet,  if  the  opposite  pleading  set  up  an  immaterial 
allegation  in  a  traversable  form,  there  is  no  rule  of  pleading 
which  can  prevent  the  other  party  from  denying  its  truth,  or 
which  requires  the  court  to  strike  out  that  denial.  The  part}'' 
making  an  immaterial  allegation  should  not  complain  if  issue  is 
taken  upon  it.     If  such  issues,  however,  incumber  the  record,  or 

are  calculated  to  embarrass  the  trial,  the  court  would  no 
[*4rl6]  doubt    strike  them  out   and  reform  *the   pleadings  on 

motion  of  either  party,  or  on  its  own  motion  at  the  trial. 

Those  alk^gations  only  in  a  complaint  are  to  be  deemed  material 

which  the  pLiiutilf  must  prove  on  the  trial,  in  order  to  maintain 

his  action  ;  and  it  is  u;  on  these  only  that  an  issue  can  be  taken 

'  Kin(j  V.  JJtica  Ins.  Co.,  6  How.  Pr.        » 1  Chit.  PI.  645.    WUbert  v.  Rounds, 
485.  .  14  How.  40.] 

'  Kinr/  v.  Utwr  Ifix.  Co.,  0   How.  Pr.         *  G  How.  Pr,  485. 
485.     [Sf'iuh  V.  St.  John,  23  How.  410, 
3G  Bail).  o:ii.] 


SEC.  11. ]  SPECIFIC   DENIAL.  523 

hy  specific  denial.'  Nor  is  the  prayer  of  the  complaint  travers- 
able, inasmuch  as  it  does  not  require  a  reply ;  no  issue  can  be 
taken  on  it.^ 

It  was  also  an  essential  rule  of  common-law  pleading  that  a 
traverse  must  be  taken  on  a  matter  of  fact  and  could  not  be  on  a 
mere  inference  or  conclusion  of  law.^  As  in  the  common  case  given 
of  trespass  for  fishing  in  the  plaintiff's  fishery  ;  the  defendant  justi- 
fied that  it  was  an  arm  of  the  sea  wherein  every  one  might  fish, 
and  a  replication  traversing  that  in  the  said  arm  of  the  sea  every  one 
had  the  privilege  of  fishing  was  held  defective  as  putting  in  issue 
a  mere  legal  conclusion!'  The  rule  has  been  more  stringently 
applied  under  the  Code  tlian  under  the  old  system,  in  a  variety 
of  cases,  some  of  which  have  been  already  cited.  They  have 
almost  invariably  held  that  conclusions  of  law,  and,  even  in  some 
instances,  allegations  of  mixed  law  and  fact,  are  not  the  subjects 
of  denial  under  the  Code  so  as  to  form  an  issue  capable  of  trial. 
As  in  the  cases  heretofore  cited  of  actions  on  promissory  notes,  a 
mere  denial  of  indebtedness  has  been  held  bad,  as  controverting 

no  material  allegation  of  the  complaint.^  And  in  like 
[*417]  manner  denials  of  an  averment  *  in  the  complaint  that 

the  plaintift"  is  the  lawful  holder  and  owner  of  the  note.* 
So  the  rule  has  been  held  to  apply  to  the  denial  of  matter 
of  law,  or  of  right,  resulting  from  the  facts  alleged  (which,  under 
the  old  system,  might  be  traversed),'  and  so  also  a  pure  question 
of  law,  or  right,  as  where  to  a  complaint  on  a  promissory  note, 
which  did  not  aver  the  plaintifi"  to  be  the  owner,  the  defendant, 
admitting  the  allegations  in  the  complaint,  denied  that  "  by  reason 
thereof"  the  plaintifiT  was  entitled  to  judgment,  this  answer  was 
held  bad.' 

A  tnixed  question  of  law  and  fact  under  the  old  system  was 
traversable ;  as,  for  example,  in  answer  to  the  allegation  that  a 
man  was  taken  out  of  prison  by  virtue  of  a  writ  of  habeas  corpus, 
it  might  be  traversed  that  he  was  taken  out  of  prison  "  by  virtue 

'  G(wvey  v.  Fowler,  5  Sand.  54.  Flammer  v.  Kline,  9  id.  216 ;   Drake 

*  Averel  x.Tmilor,  5  How.  Pr.  476.        v.  Cockroff,  1  Abb.  Pr.  203;  Edson  v. 
3  Stepb.  PI.  180,  1  Obit.  PI.  645.  Dillaye,  8  How.  373. 

*  2  Hen.  Bl.  182,  5  T.  R.  367, 2  Saund.  »  g^e  ante,  pp.  409,  411,  and  cases 
159  a.  tbere  cited. 

*  Fierson   v.  Coohy,  1    Code   R.  91 ;        '  Stepb.  PI.  192. 

McMurray    v,   Qifford,   4    How.    14 ;        »  Jloxie  v.  Cushman,  7  Leg.  Obs.  149. 


524  THE  AlSrSWEE.  [CH.   V. 

of  tliat  writ."  '  ^Within  certain  limits  the  same  principle  must  be 
applicable  to  pleadings  now;  otherwise,  as  was  remarked  by 
Justice  Selden  in  Dows  v.  HotchMss,''  it  would  lead  to  intoler- 
able prolixity.  And  though  it  is  certainly  difficult  to  determine 
how  great  an  infusion  of  law  will  transform  an  allegation  of  fact 
into  a  mere  legal  conclusion,  which  ought  not  to  be  pleaded,  and 
?annot  be  traversed,  yet  it  would  engender  still  greater  difficulties 
to   require,   in    every  instance,  pure  facts,  unmixed  with   any 

element  of  law,  to  be  pleaded.  Many  matters  which 
[*418]  have  been  heretofore  regarded  and  *are  still  regarded  as 

pleadable  facts,  are  really  mixed  questions  of  fact  and 
law,  such  as  possession,'  delivery,  negligence,  notice,  demand,  etc., 
etc.,*  and  it  certainly  cannot  be  pretended  that  such  allegations  as 
these  in  a  complaint  are  not  the  proper  subjects  of  a  specitle 
denial  under  which  evidence  to  disprove  them  may  be  given. 
Such  denials  have  been  frequently,  and  no  doubt  correctly, 
admitted  in  practice.  Thus  a  denial  that  plaintiffs  were  the  joint 
owners  of  property,  in  an  action  for  the  unlawful  taking,  was 
considered  valid,  as  new  matter,  in  Walrod  v.  BenneU!"  And 
80  in  Robinson  v.  Frost,  cited  sujpra^  a  denial  was  held  to  put  in 
issue  the  title  to  personal  property  in  an  action  for  its  conversion. 
And  in  Corwin  v.  Corwin,^  where  the  plaintiff  claimed  lawful 
title  in  an  action  to  recover  lands,  it  was  said  that  the  defendant 
might  controvert  the  allegation  of  title  in  express  words.  In 
Corning  v.  Ilaiglit^  an  allegation  by  one  of  the  defendants,  sued 
on  a  partnership  account,  that  he  "  never  was  a  copartner,"  was 
held  sufficient  to  form  an  issue.  In  Dickson  v.  KimhalV  a 
denial  by  defendant  of  an  allegation  of  jpresentinent  and  non- 
payment  of  a  note  was  held  a  sufficient  answer ;  and  in  Sherman 
and  Collins  v.  Bushnell  '*  an  answer  denying  the  indorsement 

and  delivery  of  promissory  notes  by  the  payee  to  the 
[*419]  *  plaintiff,  was  regarded  as  forming  a   material  issue." 

>  Steph.  PI.  192.  8  1  Code,  72,. 

-  10  Leg.  Obs.  281.  9  1  Code,  49. 

^[Pdrsom    V.  Broirn,    15    id.    590;  '»  7  How.  Pr.  171,  14  Barb.  393. 

nnrdenbarg  v.  Grary,  oO  Barb.  32.]  "  But  in  an  action  by  payee  against 

*  See,  on  this  subject,  ante,  pp.  244,  the  maker,  on  a  note  payable  at  bank, 
245.  an  issue  ujion  the  allegation,  that  the 

*  6  Barb.  S.  C.  144.  note  wa.s  presented  at  the  bank  at 
'  14  Barb.  S.  ('.  53G.  maturity,  wius  hclJ  immaterial,  it  not 
^  9  Barb.  S.  C.  219.  being   prctiMuled   that   the   defendant 


SEC.  II.]  SPECIFIC   DENIAL.  525 

All  tliese  various  allegations,  upon  which  the  foregoing  issue 
was  raised,  may  be  said  to  be  mixed  matters  of  law  and  fact  — 
ownership,  title,  presentment,  delivery ;  but  they  are  not,  for 
that  reason,  mere  legal  conclusions,  which  are  not  the  subject  of 
traverse. 

Indeed,  the  general  proposition,  that  a  specific  denial  of  an 
allegation  of  ownership  in  an  action  on  a  bill  or  promissory  note 
is  frivolous  and  forms  no  material  issue,  is  to  be  taken  with  some 
qualification,  as  was  noticed  on  a  former  page.* 

The  contrary  doctrine  has  been  in  several  instances  expressly 
adjudged,  as  in  the  cases  of  Beach  v.  Galup^  Snyder  v.  White^ 
and  Temple  v.  Murray  &  Ely.*'  Other  decisions  would  seem  to 
have  a  similar  bearing,  as  the  case  of  Yan  Gieson  v.  Yan  Gieson* 
affirmed  by  the  court  of  appeals,'  where  the  complaint  alleged 
that  the  promissory  note  on  which  the  suit  had  been  brought  was 
not  paid,  and  the  answer  stated  that  on,  etc.,  the  note  had  been, 
paid.  This  was  held  equivalent  to  a  specific  denial,  forming  a 
good  issue  between  the  parties.  So  in  Sawyer  v.  Warner,^  at  a 
general  term  in  the  seventh  district,  the  complaint  alleged  the 
making  and  delivery  of  a  promissory  note,  and  the  defend- 
[*-i20]  ant's  indebtedness  *  upon  it,  and  the  answer  averred  that 
the  defendant  never  gave  the  plaintiff  the  note  declared 
on.  This  was  considered  a  good  denial  of  the  allegation  in  the 
complaint  that  the  defendant  made  the  note,  so  far  as  making  the 
note  includes  delivery.  A  denial  of  the  delivery  of  the  note,  it 
was  said,  was  a  denial  of  the  indebtedness  upon  it ;  it  put  in  issue 
a  fact  indispensable  to  the  indebtedness.* 

The  leading  case  upon  the  subject  of  the  insufficiency  of  a  specific 
denial  of  an  allegation  of  mere  ownership  —  that  of  Fleury  v, 
Roget^  in  the  New  York  superior  court,  above  cited  —  seems  to 
be  placed  on  the  ground  that  upon  the  other  facts  in  the  com- 
plaint admitted,  or  not  denied,  by  the  answer,  the  plaintiff  was 
in  judgment  of  law  the  lawful  holder  and  owner  of  the  note, 

tendered  the  payment   at  the   bank.        '  15  Barb.  S.  C.  283. 

Tompkins  v.  Acer,  10  How.  309.  *  [The  reader  will  find  an  elaborate 

'  Ante,  p.  410.  note,  showing  what  is  a  question  of 

'■^  2  Code,  66.  fact  and  what  of  law,  by  Mr.  Town- 

^  6  How.  Pr.  331.  send,  in  his  edition  (2d  Am.  ed.)  ol 

•*  6  How.  Pr.  329.  Ram  on  Facts,  pp.  9-13.] 

6  12  Barb.  S.  C.  520.  9  5  Sandf.  646. 
«  1  Code  R.  N.  S.  414. 


526  THE  ANSWEE.  [CIT.  Y. 

tliat  is  to  say,  tliat  the  complaint,  irrespective  of  the  averment  of 
the  ownership,  showed  upon  its  face  that  the  plaintiff  was  the 
holder  and  owner,  and,  therefore,  the  denial  of  the  ownership, 
leaving  the  facts  showing  ownership  uncontroverted,  was  the 
denial  of  a  mere  conclusion  of  law,  and  as  such  was  frivolous. 
[A  denial  that  the  plaintiff  is  a  hona  fide  holder  of  the  note, 
or  that  he  received  the  same  in  the  course  of  business,  or  that 
he  advanced  any  new  consideration  therefor,  is  insufficient.'  In 
order  to  constitute  a  valid  indorsement  of  a  bill  of  exchange, 
as  against  the  indorser,  the  holder  must  write  his  name  on  it,  and 
a  manual  delivery  of  it  by  him,  with  the  intention,  not  only  to 
pass  the  property  in  it,  but  to  guarantee  the  payment,  if  the 
acceptor  makes  default ;  and  evidence  of  facts  showing  the  absence 
of  this  intention  is  admissible  under  a  denial  of  the  indorsement. 
Under  such  a  denial  the  indorser  may  show  the  indorsemeiit  was 
made  for  a  specific  purpose.*  A  denial  in  tliis  form :  "  The  de- 
fendant, answering  the  complaint  in  this  action,  says  he  denies 
each  and  every  allegation  contained  in  the  complaint,"  is  not 
frivolous.'  The  word  "says"  does  not  render  it  so,  although  it 
renders  the  denial  inartistic,  and  should  not  be  used.]  Precisely 
the  same  principle  governed  the  case  of  Dralce  v.  Coohroft*  in 
tlie  New  Yoik  common  pleas,  in  which  a  denial  of  the  allega- 
tion that  the  plaintiff  was  indebted,  without  controverting  any  of 
the  allegations  of  fact  in  the  complaint  which  went  to  show  the 
indebtedness  as  a  conclusion  of  law,  was  held  frivolous.     And  this 

appears  to  be  the  extent  of  the  rule,  as  was  observed  on  a  pre- 
[*421]  vious  page,'  and  as  seems  fairly  inferable  from  ^subsequent 

decisions,'  as  in  the  case  of  the  Metropolitan  Banh  v. 
Lord^''  in  which  the  allegations  of  fact  in  the  complaint  did  not 
very  clearly  establish  the  legal  conclusion  averred  therein  that  the 
plaintiff  was  the  lawful  holder  and  owner  of  the  note,  and  an 

'  Plant  V.  Schuyler,  4  Abb.  N.  S.  140,  think,  however.   Chapman  v.    Chap- 

7  Rob.  271.  inan  is  more  in  consonance  with  the 

* /)^'?i<ora  V.  P«3<eM,  L.  R.,  5  Q.  B.  47o.  present  liberal  views  as    to  the  con. 

'  Chapman  v.   Chapman,   .'54    IIow.  struction  of  ploadinsr. 

281,  di.«approvinf?  Arthur  v.  Brooks,  14  ■•  1  Abb.  Pr.  203,  10  How.  377. 

Barb.  535,  and  Blake,  v.  ELdred,  18  How.  *  Ante,  p.  410,  marg.  p. 

240.     Arthur  v.   Brooks  is  a  general  "  Catlin  v.  Onnter,  1  Duer,  2(> j  ;  llig 

term  rase,  and  it  may  be  doubted  whe-  gins  v.  Rockwell,  2  id.  650. 

flier  Chapman  v.  Chapman,  at  special  '  1  Abb.  Pr.  185. 
term,  will  be  held  to  overrule  it.     We 


SEC.  II.]  SPECIFIC   DENIAL.  527 

answer  denying  this  conclusion,  accompanied  with  a  denial  that 
the  „ee  of  the  note  delivered  it  to  the  plamtifF,  was  held  by 
Justice  BoswoETH  not  to  be  a  frivolous  answer. 

In  cases,  therefore,  where  the  complaint  upon  its  face  contains 
the  facts  which  in  judgment  of  law  show  the  p  amtiff  .o  be  the 
owner,  or  show  the  indebtedness,  etc.,  and  which,  when  proved, 
.rlma facie,  entitle  him  to  recover,  it  will  not  do  for  the  detend- 
ant  to  deny  specially  the  ownership  or  the   indebtedness.     He 
may  if  he  choose,  deny  any  fact  alleged  going  to  impeach  the 
plaintiff's  title  or  ownership,  or  the  indebtedness  alleged,  etc. ;  as 
for  example,  in  case  the  action  is  on  a  note,  he  may  deny  tha  he 
executed  the  note,  or  that  the  payee  indorsed  or  dehv^L-ed  it    o 
the  plaintiif ;  and  this  will  form  a  good  issue.     But    li  he  lely 
t,pon  the   fact   that  the  plaintiif  has   parted  with   the  title,  or 
that  some- other  person  than  the  plaintiff  is  the  real  party  m 
interest,  he  must  set  up  affirmatively  the  facts  going  to  establish 
such  defense.'     This  agrees  with  the  case  of  Russell  v. 
r*4221  *^^W,^  wherein  an  answer  was  adjudged  defective  on 
demurrer  which  alleged  generally  that  the  plaintiff  was 
not  the  real  party  in  interest,  without  stating  the  fects  showing 
that  some  person  other    than  the  plaintiff  was  the  real  pai;ty 
in  interest.     [But  when  the  answer  denies  that  the  plamtifl  i3 
the  owner  and  holder  of  the  note,  and  alleges  that  another  person 
is  the  real  owner  and  holder  thereof  and  the  real  party  m  interest, 
it  is  -ood:^  and  so  a  defendant  who  denies  an  allegation  m  the 
comprint,  of  the  transfer  of  the  note  in  snit,  may  show  the  payee 
was  in  fact  the  owner,  and  that  the  note  had  been  paid  to  him.  ] 
So  also  in  Jackson  v.  ^Yl^edon:  in  the  New  York  common  p  eas,  it 
was  ruled  that  an  objection  that  the  plaintiff  is  not  the  real  party 
in  interest  must  be  set  up  in  the  answer.     And  iipon  a  similar 
principle  is  the  decision  in  Kettletas  v.  Mc^ylee:  m  the  same  comt, 
holding  that  a  denial  by  the  defendant  of  the  execution  and  assign- 

1  Andithasbeensaid-  n.m?,..r^  V  f«;;f^^tj;^^ti"  'J-'^-^r  I'tor^ 

^Im-,   10  How   309 -that  aia  answer  f°f,ffg^^'^- 

that  the  plaintiff  is  not  the  sole  owner  "^ Abb  1»  / . J 

and  holder  of  a  note,  but  owns  it  jointly  ^^^^^ '"^^T.^,.  \  Cassard,  17  Abb.  187 

with  another  person    naming  him    is  ^  ^^Z^^d,  46  N.  Y.  688. 

insnfficient  to  present  a  case  of  a  de-  f  S!*  ih^  Com.  PL  141. 

feet  of  parties  plaintiff,  inasmuch  as  1  Smitli^^  o 

the  plaintiff  mUiht  he  a  trustee  of  the  1  ^ode  n. 
inteTe:it  of  the  otIht  owner,  and  there- 


528  THE   AXSWER.  [CH.  V. 

raent  to  liiiu  of  a  lease  containing  a  covenant  for  the  payment  of 
rent,  merely  puts  in  issue  the  execution  of  the  assignment ;  and 
that  under  it  evidence  to  show  that  before  the  rent  came  due  he 
had  parted  witli  all  his  interest  in  tlie  lease  and  assignment  was 
inadmissible.  We  shall  have  occasion  to  refer  to  this  subject 
again,  in  the  following  section  of  this  chapter,  under  the  head  of 
"  What  must  be  alleged  as  new  matter  in  the  answer." 

Another  rule  governing  the  common-law  traverse  was,  that  it 
must  not  be  taken  upon  matter  not  alleged  in  the  declaration. 
This,  however,  was  subject  to  the  exception  that  matter  necessarily 
imjjUed,  though  not  expressly  alleged,  was  traversable.'  As  for 
example,  where  the  allegation  is  that  A  is  seized,  etc.,  of  certain 
property,  it  implies  that  he  is  solely  seized,  and  the 
[*423]  defendant  may  traverse  that  A  is  seized  *alone."  So,  in 
a  partition  suit,  though  the  person  applying  for  the  par- 
tition must  be  in  the  actual  or  constructive  possession  of  an 
undivided  share,'  yet,  where  a  bill  merely  alleges  that  the  plaintiff 
is  seized,  possession  is  presumed  or  implied,*  and  the  defendant 
may  traverse  the  fact  of  possession,  and  if  he  prove  that  the  plain- 
tiff is  not  in  the  actual  or  constructive  possession,  or  that  the 
possession  is  held  adversely,'  the  complaint  must  be  dismissed. 

This  rule  would  seem  to  be  fully  applicable  to  pleadings  under 
the  Code.  It  can  make  no  difference  whether  the  material  allegii- 
tion  is  actually  (merred  in  the  complaint,  or  whether  it  is  such  as 
is  necessarily  implied ;  the  implied  allegation,  if  material,  may 
be  denied,  and  matters  merely  going  to  controvert  or  disprove 
such  fact  may  be  proved  under  such  denial.  This  seems  to  rac 
to  be  the  necessary  conclusion  from  most  of  the  cases  since  the 
Code.  Tlius,  in  Lord,  v.  Cheeshorough^  the  complaint  was  on  a 
promissory  note  transferred  to  the  plaintiff,  and  did  not  set  out 
the  facts  of  the  transfer  and  delivery  to  the  plaintiff.  The  defend- 
ants traversed  these  facts,  and  the  court  held  it  was  competent 
for  them  to  do  so.  In  Van  Oieson  v.  Yan  Gieson''  it  is  said 
that  the  possession  of  a  promissory  note  implies  that  it  is  not 
paid,  ;;nd  a  denial  of  payment  was  thought  to  be  a  denial  of  a 

'  Steph.  PI.  173,  194 ;  1  Saund.  312  ;  "9  Cow.  R.  530.    \Flore7ice  v.  Hop- 

G  Mod.  158  [ante,  413,  marg.p.]  kins,  4G  N.  Y.  183.] 

■'  2  Salk.  G29.  «  4  Sandf.  696.  1  Code  R.  N.  S.  332. 

»  2  Paige'H  Cli.  242.  ■>  1  Code  R.  N.  S.  414. 
*  2  Barb.  Ch.  398. 


SEC.   11.]  FORM   AND   EFFECT   OF   DENIAL.  529 

[*424]  material  allegation  in  the  complaint ;  *tlie  allegation  tliat 
the  note  is  unpaid  at  the  commencement  of  the  suit,  it 
seems,  is  unnecessary.'  So,  too,  the  presumption  of  law  is  that 
the  holder  of  a  note  is  the  owner ;  ^  but  the  denial  of  such  an 
allegation,  without  alleging  title  in  a  third  person,  would  he 
unavailing.'  This,  as  has  been  already  observed,  is  on  the  ground 
that  ownership  is  a  mere  inference  of  law  resulting  from  facts ; 
and  same  may  be  said  with  regard  to  the  traverse  of  the  allega- 
tion that  a  plaintiff  is  the  real  party  in  interest  when  implied  in 
the  complaint,  as  in  Russell  v.  Clapp.^  Such  an  allegation  is  not 
properly  the  subject  of  a  specific  denial,  not  for  the  reason  that  it 
is  not  expressly  alleged  in  a  complaint,  but  because  it  is  a  mere 
legal  conclusion.  The  rule,  therefore,  in  regard  to  the  denial  of 
implied  as  well  as  of  express  allegations  is,  that  they  must  be 
material  allegations  of  what  the  law  regards  as  pleadable  facts, 
otherwise  they  are  not  traversable  and  no  issue  can  be  taken  upon, 
them.  In  a  former  part  of  this  work '  the  subject  of  implied 
material  averments  in  the  complaint  was  considered,  and  the 
reader  is  referred  to  what  was  there  said  in  illustration  of  the  sub- 
ject now  under  discussion.  Every  material  averment  of  fact  in  a 
complaint  necessarily  implied  from  the  other  facts  alleged,  accord- 
ing as  the  rule  is  there  laid  down,  it  is  conceived  is  as  properly 
the  subject  of  a  denial  as  though  such  averment  were  set  forth 

in  express  terms. 
[■^425]  ^The  form,  manner,  and  effect  of  a  general  or  specif  c 
denial.  The  subject  has  been  incidentally  noticed  in  the 
foregoing  observations  on  the  nature  and  use  of  the  general  and 
specific  denial ;  and  a  few  remarks  in  addition  is  all  that  can  be 
necessary. 

As  the  Code  was  originally  framed  the  denial  was  in  all  cases 
required  to  be  specific.  In  favor  of  the  section  as  it  thus  stood, 
it  was  urged  that  if  a  general  denial  were  allowed  it  would  defeat 
the  whole  policy  of  the  Code  in  respect  to  narrowing  down  the 

'  Appleby  v.  Ellmu,  2  Sandf.   673.  cause  of  action.      Walker  v.  Oranite 

\McKyring  v.  Ball,  16  N.  Y.  297 ;  but  Bank,  1.  Abb.  N.  S.  40[). 

Bee   Quin    v.  Lloyd,  41    id.    349.  and  '^  James   v.    Chambers,  5   Saiidf.  52, 

Young  v.  Kent,  46  id.  672.    A  denial  and  cases  supra. 

of   payment  may  be  good  where  the  ''Flevryv.Roget,bBiu\(U.CA[\,M\Cc<m 

plaintiff  is  obliged  to  allege  non-pay-  cases  cited  ante,  marg.p.  410,  416,  41  7. 

ment  affirmatively   as  a  part   of   his  "^  llnsv.  Pr.   347;   7' Barb.   S.  C.   4,A 

'"  Ante,  pp.  220,  332,  333. 

67 


530  THE  A:^fSWER.  [cii.  v. 

issue  in  pleadings.     It  was  said,  that  althongli  tlie  complaint  was 
sworn  to  and  snbstantiallj  true,  yet  if  it  contained  one,  even  the 
slightest,  misstatement,  a  defendant  might  deny  it  as  a  whole.    A 
moment's  examination,  however,  will  be  sufficient  to  demonstrate 
that  this  is  not  so.     Tlie  answer  is  required  to  contain  a  "  general 
or  specific  denial  of  each  material  allegation,"  etc.     An    answer 
that  "  the  defeii Jant  denies  the  plaintitf's  complaint,"  or  ''  denies 
the  allegations  contained  in  the  plaintiff's  complaint  in  manner 
and  form  as  set  forth  therein,"  would  be  manifestly  insufficient. 
Effect  must  be  given  to  the  words   ''  each  material  allegation." 
And  if  the  general  denial  or  traverse  is  used,  it  should  be  strictly 
in  the  form,   "each  allegation,"   or  "each   and  every  allegation 
set  forth  in  the  plaintiff 's  complaint."      This  will  prevent  the 
abuse  of  this  genei-al  form  ot  traverse,  in  cases  where  the  plaintiff 
verifies  his  complaint  for  the  purpose  of  narrowing  down  the  issue 
by  obtaining  from  the  other  side  an  admission  of  those  material 
facts  about  which  there  can  be  no  dispute.      A  denial  of  "  each 
allegation,"     is    in  term    distributive ;    and   if  a   single 
[*'J:26]  allegation  in   the   complaint    *  be   true,   the    defendant 
will  not  be  able  to  use  this  general  form  of  ti'averse. 
Tlie  general  principles,  formerl}-  applicable  to  answers  in  equity, 
may  be  very  properly  and  safely  applied  to  the  answer  of  the 
defendant  by  way  of  denial   under  the  Code.      It  was  a  well- 
settled  principle  in  equity  that  the  defendant  must  not  merely 
answer   the  several  charges    in  the  bill   literally,  but  he  must 
answer  as  to  the  substance  of  each  charge  and  not  by  way  of 
negative   pregnant.*     He  must  traverse  the   substance  of  each 
charge  in  the  bill  positively  and  with  certainty ;  and  particular 
precise  charges  must  be  answered  particularly  and  precisely,  and 
not  in  a  general  manner,  even  though  the  general  answer  may 
amount  to  a  full  denial  of  the  charges.'     It  is  not  enough  when  a 
charge  is  made  v/ith  all  the  circumstances  of  time,  place,  etc.,  to 
deny  such  charge  generally  in  the  words  thereof;  but  in  all  cases 
where  the  charge  embraces  several  particulars  the  answer  should 
be  in  the  disjunctive,  denying  each  particular,^  or  admitting  sjnie 
and  denying  others  according  to  the  fact.* 

■'  Mitf.  Eq.   PI.  250,  Welf.  Eq.    PI.        ^  j^i^g  v.  Ray,  11  Paige's  Ch.  339  ; 
865,  Story's  E(i.  PI.,  ^  654.  Davis  v.  Mnpcs,  2  id.  105. 

^  Woodsv.  Morrdl,\  iu\\.\\s.  C\\.\(il.        ••  This   was   the   equity  rule       The 


SEC.  II,]  FORM   AND   EFFECT   OF  DENIAL.  531 

[*tl:27]  *These  rules  from  their  very  nature  are  generally  appli- 
cable to  the  Code ;  and  they  have  been  frequently,  and, 
mdeed,  almost  universally  recognized  in  practice.  A  denial  must 
not  be,  says  Mr.  Monell,  in  his  recent  work  on  Practice,  to  the 
manner  and  form  but  to  the  subdance  of  the  allegation.  Hence, 
it  is  not  enough  to  say,  that  a  particular  allegation  of  the  com- 
plaint is  not  true  in  manner  and  form  as  therein  stated,  but  that 
it  is  not  true  in  any  manner  or  form,  or  in  any  of  its  particulars, 
as,  for  example,  the  defendant  did  not  on  such  a  day,  or  on  any 
other  day,  promise  to  pay  the  plaintiff  such  a  sum  or  any  other 
sum. ' 

A  great  number  and  variety  of  reported  cases  since  the  Code 
might  be  referred  to,  in  order  to  show  the  propriety  and  necessity 
of  a  strict  application  of  these  principles.  Indeed,  this  subject 
more  than  any  other  in  the  whole  range  of  pleading  illustrates 
the  truth  of  the  remark  that  words  were  invented  to  conceal 
ideas.  The  ingenuity  of  pleaders  has  been  racked,  and  the 
subtleties  of  language  has  been  taxed  to  its  utmost  extent  to 
invent  new  forms  of  ambiguous  and  equivocal  denial.  A  refer- 
ence to  a  few  of  the  more  marked  cases  will  explain  the  general 
nature  of  the  subject,  leaving  the  reader  to  investigate  it  more 
closely  in  practice,  or  by  an  examination  of  the  reports  at  large. 

In  the  case  of  3£ier  v.  Cartledge^  in  an  action  on  two  drafts, 

the  defendant  pleaded  that  "  he  denies  that  the  defendant 

[*-I28J  in  said  complaint   mentioned  "^did,    as   therein   alleged, 

accept  the  draft,"  etc.     This  was  held  by  Justice  Edmonds 

a  defective  form   of  denial.     In  this  case  the  answer  had  been 

verified,  and  the  affidavits  used  on  the  motion  showed  that  the 

defenflant  might  admit  some  of  the  the  correct  practice,  as  the  Code  cer- 
allegations  and  deny  others.  It  is,  tainly  does  not  require  the  answer  to 
however,  said  to  be  improper  to  contain  in  express  terms  an  admission 
express  an  admis.non  under  the  Code  of  a  fact  alleged  in  a  complaint.  The 
(1  Monell's  Pr.,  2d  ed.,  364).  If  the  contrary  practice,  however,  is  very- 
defendant  intend  to  admit  the  truth  frequently  pursued ;  and  I  do  not  see 
of  an  allegation,  he  should  simply  why  a  party  should  be  subjected  to 
refrain  from  answering  it  at  all,  and  the  cost  of  a  motion  to  correct  his 
the  allegation  will  stand  admitted  on  pleading  for  such  a  defect,  or  how  the 
the  pleadings  as  formerly  under  the  opposite  party  can  be  said,  in  any  sense, 
equity  rule  {Glue  v.  Bool,  8  Paige,  88;  to  be  aggrieved  thereby. 
Code,  §  KJo).  The  same  has  lieen  held  '  Mouell's  Pr.,  2d  ed!,  oG4,  post,  780, 
in  one  or  two  instances  at  speciiil  terra  marff.  p. 

under  the  Code,  as  in  Gould  v.  WilH'vms,  ^  4  How.  Pr.  115  ;  S.  C.  on  apf  eal,  8 

9  How.  51 ,  and  doubtless  is  technically  Barb.  75. 


532  THE   AlSrSWER.  [CH.  Y. 

drafts  had  been  accepted  bj  tlie  authorized  agent  of  the  defendant. 
The  denial  that  they  were  accepted  hy  the  defendant^  as  alleged  in 
the  complaint,  was,  therefore,  in  point  of  fact  an  evasion  and  a  mere 
denial  of  a  conclusion  of  law.  In  Hopkins  v.  Everett^''  the  com- 
plaint alleged  that  the  defendant  '*  assaulted  the  plaintiff,  and 
seized  him  by  the  collar,  and  shook  him  violently ; "  the  answer 
denied  that  the  defendant  did  assault  the  plaintiff,  and  seize  him 
by  the  collar,  and  shake  him  violently ;  and  the  denial  was  held 
bad  on  demurrer  ;  it  should  have  been  to  each  charge  distinctively 
if  the  defendant  intended  to  put  the  whole  of  them  in  issue." 

The  case  of  Sallinger  v.  Rusk '  was  placed  on  a  similar  prin- 
ciple. It  was  an  action  of  slander,  and  the  defendant  denied  the 
allegation  in  the  complaint  "  that  on,  etc.,  in  the  city  of,  etc.,  he, 
the  defendant,  did  speak  of  and  concerning  the  plaintiff  in  a  pub- 
lic manner,  and  in  the  presence  and  hearing  of  divers  persons,  the 
following  false,  malicious,  and  defamatory  words,"  etc.  This  was 
simply  a  denial  by  the  defendant  that  he  uttered  the  precise  words 
at  the  precise  time,  and  in  the  particular  place  and  manner  stated 
in  the  complaint,  and  was  held  defective  on  demurrer.  "  This 
answer,"  it  was  remarked  by  the  court,  "  may,  therefore, 
[*429]  without  being  literally  false,  *leave  a  good  cause  of  action 
undenied.  If  we  tolerate  this  mode  of  pleading,  we  abolish 
the  substantial  benefits  of  a  verification." 

For  similar  reasons  it  was  said  in  Otis  v.  Ross  et  al.^  that  an 
answer  is  defective  where  it  denies  the  allegations  in  the  alterna- 
tive form,  as  tliat  the  defendant  made  this  representation,  or  that, 
or  that,  thus  leaving  it  uncertain  which  he  means  to.  deny.  The 
word  nor^  instead  of  or^  should  have  been  used. 

Arthur  V.  Brooks"  furnishes  another  example  of  a  defective 
denial.  To  a  complaint,  setting  out  the  assignment  of  a  bond  and 
mortgage,  for  a  valuable  consideration,  etc.,  the  defendants,  answer- 
ing, "say  that  they  deny  that  on,  etc.,  or  at  any  other  time,  the 
said  S.  D.yfor  a  valuable  consideration,  duly  assigned,"  etc.  The 
answer  was  held  a  negative  pregnant '  and  not  a  denial  which  put 

'  6  How,  Pr.  119 ;  3  Code  R.  150.  *  8  How.  Pr.  163,  Gen.  T.,  6tli  Dist. 

'  Crary  v.  Sinith,  2  N.  Y.  60 ;  Aaahlc        »  14  garb.  S.  C,  088  [but  see  Chap- 

V.  Slcam  Enfjine.  Co.,  18  Abb.  286 ;  Pot-  man  v.  Chapman,  81  How.  281]. 
ter  V.  Kitchen,  5  Bosw.  506.  *  See  remarks  on  this  subject,  poet, 

»  7  How.  Pr.  480.  ch.  viii,  i^  5. 


SEC.  II.]  FORM    AN"D   EFFECT   OF   DENIAL.  533 

in  issue  the  assignment  of  the  bond  and  mortgage.  The  mode  of 
expression,  that  the  defendants  '-^ say  tliey  deny,"  etc.,  was  also 
considered  defective.  A  direct  and  positive  denial  of  a  fact,  says 
the  court,  is  one  thing;  merely  saying  that  they  deny  is  quite 
another.  It  would  be  impossible  to  assign  perjury  on  an  affidavit 
to  such  answer  upon  the  denial.  The  defendant  would  answer 
that  he  had  not  in  fact  denied,  but  had  only  said  to  some  one  that 
he  had  denied  the  averment  in  the  complaint. 

The  case  of  Sherman  v.  The  New  York  Central  Mills '  is 
["^430]  another  example  of  a  defective  answer,  *by  reason  of  the 
denials  having  been  taken  conjunctively  to  the  allegations 
of  the  complaint.  The  action  was  upon  a  promissory " note,  and 
the  answer  denied  knowledge  or  information  sufficient  to  form  a 
belief  that  the  defendant  did,  "  at  the  time,  foi'  that  purpose  stated 
in  the  complaint,  by  its  authorized  agent,  make  its  promissory 
note  by  the  name  and  for  the  amount,  and  as  is  in  this  respect  set 
forth  in  said  complaint,"  etc.  And  such  answer  was  deemed,  by 
the  supreme  court  in  hanc,  in  the  fifth  district,  to  have  been  prop- 
erly treated  as  frivolous,  on  account  of  the  insufficiency  of  the 
denial. 

[Merely  making  a  counter  statement,  or  giving  a  different  ver- 
sion of  the  matter  contained  in  a  previous  pleading,  without 
denying  tlie  allegations  therein,  is  not  a  denial.*  Where  a  joint 
answer  of  several  defendants  denies  an  allegation  in  the  complaint, 
which  the  plaintiif  must  prove  to  establish  a  cause  of  action  against 
some  of  the  defendants,  but  which  he  need  not  prove  to  entitle 
him  to  recover  against  the  others,  the  answer  raises  a  material 
issue  for  the  defendants  as  to  whom  the  plaintiff  must  prove  such 
allegations.'] 

It  is  uimecessary  to  multiply  these  examples  of  defective  denial. 
The  courts  universally  speak  the  same  language  in  regard  to  them. 
The  denial  must  be  direct  and  specific,  not  evasive,  equivocal  or 
ambiguous ;  nor  in  the  alternative,  nor  to  the  manner  and  form  ; 
but  it  must  be  a  denial  in  fact  and  must  speak  to  facts,  answer- 
ing the  suhstance  of  each  distinct  charge  and  part  thereof,  posi- 

I  1  Abb.  Pr.  1S7.  id.  176.    See  McGregor  v.  McGregor. 

■  Wood   V.    Whiting,   21   Barb.   190  ;     35  How.  -385. 
West  V.  American  Exchange  Bank,  44        *  Bank  of  Cooperstoioii  v.  Corlies,  1 

Abb.  N.  S.  412. 


634  THE  ANSWER.  \CU.  V. 

tively  and  with  precision  and  certainty.  When  it  is  said,  liowe\  er. 
that  a  denial  must  he  positive,  it  is  not  meant  that  it  must  in  all 
eases  be  so  in  form.  The  provision  of  the  Code  under  consider- 
ation makes  a  very  important  exception  in  this  respect  which  it  is 
proper  in  this  place  briefly  to  notice. 

Denial  on  information  and  lelief?  —  The  original  Code  per- 
mitted the  defendant,  as  to  each  allegation  of  the  complaint,  to 
deny  "  any  knowledge  thereof  sufficient  to  form  a  belief."  The 
amendment  of  1849  permitted  him  to  deny  each  allegation, 
"  aoGording  to  his  information  and  belief,  or  of  any  knowledge 
thereof  sufficient  to  form  a  heUef''  The  amendment  of 
[-431]  *1851  allowed  a  denial  "  according  to  his  knowledge,  infor- 
mation or  heUef  or  of  any  hnoioledge  or  information 
thereof  sufficient  to  form  a  helief  f  and  the  Code,  as  amended  in 
1852  and  as  it  now  stands,  requires  the  answer  to  contain  "  a  gen- 
eral or  specific  denial  of  each  material  allegation  of  the  complaint 
controverted  by  the  defendant,  or  of  any  knowledge  or  inforvia- 
tio7i  thereof  sufficient  to  form  a  helief.''^ 

These  various  forms  and  modes  of  denial  on  information  and 
belief  which  the  legislature  has  adopted  from  time  to  time,  since 
the  Code  went  into  effect,  show  the  great  practical  difficulty 
which  attends  the  laying  down  of  a  fixed  and  arbitrary  formula 
to  embrace  all  kinds  of  denials,  and  every  conceivable  case  in 
which  the  defendant  is  called  upon  either  to  admit  or  deny  the 
specific  allegations  made  against  him.  The  degree  of  particu- 
larity in  a  denial  necessary  for  the  ends  of  justice  in  one  case 
may  be  very  different  from  that  which  is  necessary  in  another. 
Hence,  in  equity  the  rule  was  more  flexible  and  indeed  it  was 
said  that  there  could  be  no  positive  rule  fully  to  provide  for 
all  the  various  difficulties  in  cases  of  that  kind,  but  that  each 
case  must  necessa.  ily  stand  and  be  decided  upon  its  own  circum- 
stances." 

So  far  as  a  general  rule,  however,  is  to  be  traced  in  that  practice, 

it  may  be  stated  briefly  to  be  that  when  a  fact  is  charged  which 

is  within  the  defendant's  knowledge,  as  if  it  is  done  by  himself. 

lie  must  answer  j^ositively,  and  not  to  his  remembrance 

[*4:32]  or  belief,  at  least  if  the  fact  is  stated  *  to  have  happened 

^  See  ante,  mnrg.  p.  409,  et  eeq.  '  Story's  F^q.  PI.,  §  855. 


BEC.  II.]       DENIAL  ON  INFORMATION  AND  BELIliF.  535 

recently.'  But  as  to  facts  which  have  not  happened  within 
his  own  knowledge,  he  must  answer  as  to  his  information  and 
hclief,  and  not  to  his  information  merely  without  stating  any 
hellef  one  way  or  the  other."  These  principles,  borrowed  from 
the  equity  practice,  have  been  applied  to  some  extent,  as  will  be 
presently  noticed,  to  cases  arising  under  the  Code. 

It  was  held  in  the  late  court  of  chancery,  that  w^ien  a  defendant 
answers  that  he  is  "  ntterly  and  entirely  ignorant "  as  to  the  fact 
to  which  he  is  interrogated,  such  answer  is  to  be  regarded  as 
sufficient."  It  did  not  seem  necessary  in  addition  to  conti-ovcrt 
by  a  direct  denial  the  allegation  thus  answered.  [So  under  the 
Code.*]  Upon  a  similar  principle  in  Dore'mus  v.  Lewis  ^  under 
the  Code  of  1848  it  was  considered  that  a  denial  by  way  of  reply 
to  an  answer,  to  the  effect  that  the  plaintiff  was  ignorant  of  the 
fticts  contained  in  the  answer,  and  had  not  sufficient  knowledge 
thereof  to  form  a  belief  was  sufficient  to  join  an  issue  of  feet  on 
the  allegations  so  answered,  and  that  it  was  not  necessary  in 

addition  to  "  controvert "  them  by  a  denial  in  terms. 
[^'433]  The  principje,  it  *is  thought,  is  equally  a2:)plicable  to  the 

answer;  and  has  been  so  held,  and  it  makes  no  difference 
wliether  the  answer  be  verified  or  not.'  An  answer  in  this  fonu 
raises  an  issue,  in  which  the  plaintiff'  holds  the  affirmative,  an;] 
which  gives  the  defendant  on  the  trial  all  the  benefit  of  iulro- 
ducing  proof  which  he  would  have  on  a  positive  denial.* 

'  The    period     recognized     by    the  '  Snyder  v.  White,  6  How.  Pr.  ;>31 ; 

general  practice  within  which  a  party  Oeneaee  Mut.  Ins.  Co.  v.  MoyiciJu-n,  5 

i.s  presumed  to  have   personal  knowl-  id.  S'31. 

edge  of  a  fact  charged  to  have  been  **  The    contrary    is    stated    by    Mr. 

committed  by  him,  aw  stated  by  Mr.  Mouell,  in   his    work    on    "Practice." 

Cooper  in  his  Equity  Pleadings,  is  six  The  defendant  on  such  an  allegation, 

years.     Coop.  Ecj.  PI.  14.  he  says,  leaves  the  case  with  the  plain- 

*  Story's  Eq.  PI.,  ^  854.  tiff,  who  must  estal)lish  it  by  proof, 

'  Morris  v.  Parker,  6  Johns.  Ch.  297.  but  the   defendant  is   estopped   from 

^  Flood  V.  liegihdds,  13  How.  112  ;  examining   witnesses   to    disprove    i;. 

L'-ach  V.  Boyiiton,  3  Abb.  3  ;  Toicnsertd  He  must  not  only  aver  that  he  has  not 

V.  Piatt,  id.   325;  Livingston  \.  Uam-  "  sufficient  knowledgii,"  etc. .but  must 

rncr,  7  Bosw.  670.  accompany    such     averment     witli    a 

'"  8  Barb.  S.  C.  125,  at  general  term  denial  in  order  to  introduce  evidence 

4lh  District,  reversing  the  decision  at  to  disprove  the  allegation.    1  Monell's 

special  term.  Pr.,   2d  ed.,  581),  570.      This  practice, 

"  This  is  not  at   variance    with  the  however,  is  manifestly  incorrect ;  and 

case  of   Edwards  v.    Lent,  infra.     As  it  has  so  been  expressly  held  in -S',<.?/rZc;?' 

the  Code  then  stood  the  defendant  was  v.  White,  6  How.  o21.  Justice  Wiii.i.KS, 

required  merelj' to  deny  any  ^Y<.07/)^r;(^.7(?  in   that  case,  says,  of  such   an   issue, 

Bulficient   to   form  a  belief  ;    and    not  "  that  the   jjarty  tiius  pleading  would 

"  knowledge  or  infonnati')n,"  etc.  have  all  the  benefit  on  the  trial  and  llio 


536  THE  ANSWER.  [CIT.  V. 

A  denial  in  an  answer  that  a  defendant  '•'  is  ignorant  of 
whether,"  etc.,  was  held  insufficient  in  the  N.  Y.  common 
pleas.'  Such  a  mode  of  denial  is,  to  say  the  least,  defective  in 
form.  But  it  has  been  thought,  on  good  authority,  that  a  denial 
may  be  made  on  a  party's  belief,  founded  on  his  information  of 
facts  not  within  his  personal  knowledge.  A  denial  on  belief 
only  was  held  sufficient  by  Justice  Pakkee  in  Davis  v.  Potter ' 
under  the  Code  of  1849 ;  and  this  agrees  with  what  was  said  in 
Ilowel  V.  Fraser^  and  Radway  v.  Mather^  in  regard 
[*434-]  *  to  the  allegations  in  a  complaint.  So,  too,  in  Fry  v. 
Bennett^  at  the  general  term  of  the  superior  court,  an 
allegation  in  the  answer  that  "  the  facts  were  and  are  true  as  this 
defendant  has  been  informed  and  believes,"  was  construed  as  an 
averment  upon  information  and  belief  of  the  existence  of  the  facts, 
and  was  considered  good.  The  same  thing  seems  to  be  assumed 
in  the  later  case  of  Kincaid  v.  Kipp  dc  Brown^  decided  on  con- 
sultation of  the  judges  of  that  court ;  and  the  case  of  Edwards  v. 
Lent^  in  the  supreme  court,  which  will  be  presently  cited  again 
for  another  purpose,  holds  that  a  denial  on  belief,  derived  from 
information,  is  one  of  the  regular  forms  of  denial  allowed  by  the 
Code. 

It  is  to  be  observed,  hoAveve]-,  in  regard  to  this  mode  of  denial, 
that,  if  correct  in  practice  at  all,  it  must  be  an  affirmative  denial 
of  the  fact  controverted  on  the  belief  of  the  party  derived  from 
his  own  information.  A  mere  denial,  that  the  defendant  has  any 
belief,  whether  the  allegation  is  true  or  not,  or  any  belief  on  the 
subject  at  all,  would  be  manifestly  evasive  and  insufficient.  If 
he  answer  in  this  form  it  should  regularly  be  that  "  the  defendant, 
on  this  information,  and  belief,  denies,"  etc. ;  not  that  "  the  de- 
fendant has  no  belief  whether  the  fact,"  etc.,  is  true,  or  any 
other  form  of  words  equivalent  to  a  mere  denial  of  helief.  The 
phiintiff  is  regularly  entitled,  not  to  a  simple  denial  of  belief 
only,  but  also  a  denial  of  all  knowledge  or   'nformation  which, 

same  right  to  introduce  evidence  that  "  4  How.  Pr.  155. 

he  would  have  in  case  the   fact  had  *  6  id.  221. 

b«;cn   directly  and  positively  denied ;  *  5  Sand.  654. 

otlierwise,  it  floenis  there  would  be  no  '  5  Sand.  54,  1  Code  R.  N.  S.  238. 

use  nor  mcaninfr  in  the  section  giving  •  1  Duer,  692,  11  Leg.  Obs.  314. 

this  form  of  denial."  '  8  How.  Pr.  28. 
'   Wood  V.  yytnmd,  3  Code  R.  155 


SEC.  II.]       DENIAL  ON  INFORMATION  AND  BELIEF.  537 

[*4:35]  according  to  the  *defendaat's  own  judgment  and  con- 
science, he  regards  as  sufficient  to  form  a  belief  on  each 
and  all  the  charges  alleged  against  him.' 

In  using  the  form  of  traverse,  or  denial  of  all  knowledge  or  any 
information  sufficient  to  form  a  belief,  it  is  evident  that  there  jan 
be  no  safety,  except  in  following  precisely  the  language  of  the 
statute.'  This  has  been  intimated  in  several  well-considered  cases 
which  seem  to  be  entirely  consistent  with  the  principles  of  good 
pleading  as  well  as  with  the  letter  and  spirit  of  the  Code.  Thus, 
in  Nichols  v.  Jones ^  a  denial  to  the  effect  that  the  defendant 
"  has  no  recoiled  ion  sufficient  to  form  a  belief"  was  pi'operly  held 
a  mere  evasion  and  as  forming  no  material  issue.  It  is  not  tanta- 
mount to  a  direct  denial,  nor  even  to  a  declaration  that  the 
defendant  did  not  believe  he  did  the  act  complained  of.  In  the 
New  York  common  pleas.  Daily,  J.,  in  the  case  of  Mott  v.  Bur- 
nett^ was  inclined  to  regard  -a.  denial  by  a  defendant  of  sufficient 
knowledge  or  information  whereon  to  form  a  belief,  as  defective. 
At  all  events,  he  considered  it  better,  in  such  a  material  part  of 
the  answer  as  this,  to  confine  a  defendant  to  the  strict  lano^vaire 
of  the  Code.  A  construction  quite  as  strict  is  very  clearly  enun 
ciated  and  laid  down  in  the  case  of  Ilackett  v.  Richards,^  in  the 
New  York  common  pleas  by  the  same  judge,  holding  a  denial 
on  information  and  belief  defective.  "  I  suppose,"  he 
P436]  remarks,  *"  the  construction  of  the  amended  section  now 
is,  that  the  defendant  must  deny  absolutely,  without  any 
qualification  whatever,  unless  he  can  deny  that  he  has  other  knowl- 
edge or  information  sufficient  to  form  a  belief.  Where  he  cannot 
do  this,  as  where  he  has  knoAvledge  or  information,  and  has  formed 
a  helief,  he  must  deny  positively ;  for  he  cannot  traverse  the  alle- 
gations now,  except  in  one  of  two  modes.  The  intention  of  the 
legislature  appears  to  have  been  to  allow  the  defendant  less  lati- 
tude in  traversing  the  complaint  than  heretofore,  for  they  have 
designedly  omitted  the  provisions,  allowing  a  denial  upon  knowl- 
edge, information  or  belief,  and  substantially  re-enacted  the  form 
prescribed  when  the  Code  was  first  passed,  and  which  form  mtust 

'  Wood  V.  Stanid,  3  Code  R.  152.  "  1  Code  R.  N.  S.  225. 

"  Wood  V.  Stmnd,  3  Code  R.  152.  ^  11  Leg.  Oba.  315. 

»  6  How.  Pr.  355. 

68 


538  THE   ANSWER.  [CII.  V. 

now  he  strictly  followed^''  The  case  of  Edwards  v.  Lent^  while 
holding,  with  most  of  the  foregoing  cases,  and  in  opposition  to 
that  last  cited,  that  the  denial  of  a  fact,  not  within  the  personal 
Icnoioledge  of  the  defendant,  may  be  upon  his  belief,  yet  pursues 
an  equally  strict  rule  of  construction  in  regard  to  the  denial,  that 
the  defendant  has  not  knowledge  or  information  sufficient  to 
form  a  helief.  It  is  not  enough  to  deny  that  the  defendant  has 
not  sufficient  knowledge  on  the  subject  to  form  a  belief,  without 
referring  to  his  iiformation  •  nor  would  it  be  enough  to  say 
that  he  has  not  sufficient  information  to  form  a  belief  without 

referring  to  Iris  knowledge;  there  must  be  an  absence 
[*4:37]  of  both  knowledge  and  information  sufficient  *to  form  a 

helief  \q  enable  the  defendant  to  use  this  mode  of  denial. 
In  this  opinion  Justice  Harris  holds  that  there  are  three  forms  of 
denial  by  the  Code ;  first,  a  positive  denial ;  second,  a  denial  on 
belief  alone,  derived  from  information,  and  not  personal  knowl- 
edge; and  third,  a  denial  of  any  knowledge  or  information  suffi- 
cient to  form  a  belief.  As  the  opinion  itself  is,  on  tlie  whole,  a 
clear  and  intelligible  analysis  of  the  entire  subject,  I  quote  it  at 
length : 

"  There  are  three  forms  in  which  a  defendant  may  put  in  issue 
the  allegations  of  the  complaint.  The  first  is,  when  the  fact  all  eged 
is  a  matter  within  the  personal  knowledge  of  the  defendant.  The 
second  is,  when  the  matter  alleged  is  not  within  the  personal  knowl- 
edge of  the  defendant,  but,  relying  upon  his  information,  he  either 
believes  or  does  not  believe  the  allegation  to  be  true.  The  third 
is,  when  he  has  no  such  knowledge  or  information  as  will  enable 
him  to  form  a  belief,  whether  the  allegation  is  true  or  not.  These 
forms  of  pleading  may  not  be  indiscriminately  adopted.  If  the 
matter  alleged  is  such  as  must,  from  its  very  nature,  be  within  the 
defendant's  own  personal  knowledge,  he  cannot  deny  it  upon  in- 
formation nierely.  If  it  be  a  matter  in  respect  to  which  he  has 
no  personal  knowledge,  he  must  deny  it  upon  his  information,  if  he 
have  such  information  as  enables  him  to  say  he  believes  it  to  be 
untrue.  AYhen  he  is  unable,  either  from  his  own  knowledge  or 
npon  any  information  he  lias  received,  to  say  whether  the  allega 

'  And  this  case  is  approved  by  Jus-         '  8  How.  Pr.  28. 
tice  Bacon,   in    Thorn.  <(';   ?Jfniriard  v. 
N.   7.  Central  MUl^<,  10  II  .-.v.  20. 


SEC.  n.]       DENIAL  ON  INFORMATION  AND  BELIEF.  o30 

tion  is  true  or  not,  he  may  say  so,  and  this  will  be  sufficient  to  put 

the  allegation  in  issue.  The  answer  will  be  insufficient  if 
[*4r38]  it  denies,  merely  upon  '"■''information,  an  allegation,  the  truth 

or  falsity  of  which  is  within  the  defendant's  own  knowl- 
edge. So  also,  it  will  be  insufficient,  if  it  allege  merely  that  the 
defendant  has  not  sufficient  knowledge  on  the  subject  to  form  a 
belief,  w^ithout  referring  to  his  information.  It  is  only  when  he 
has  neither  knoivledge  nor  information  to  enable  him  to  form  a 
belief  on  the  subject,  that  he  can  controvert  an  allegation  under 
this  provision  of  the  Code. 

"  Tested  by  these  rules,  those  portions  of  the  answer  wliich  the 
plaintiff  moves  to  strike  out  are  obviously  defective.  Whether 
the  plaintiff  gave  the  defendant  notice  that  the  rate  of  insurance 
would  be  increased,  and  whether,  upon  receiving  such  notice,  they 
gave  the  plaintiff  the  authority  stated  in  the  complaint,  are  mattei's 
which  must  be  within  the  personal  knowledge  of  the  defendants. 
They  were  bound,  therefore,  unless  they  would  admit  the  alle- 
gations, to  deny  them  positively.  It  was,  to  say  the  least,  an 
evasion  for  the  defendants  to  controvert  these  allegations  by  say- 
ing they  had  not  sufficient  knotoledge  to  form  a  belief  in  respect 
to  them. 

"  But  all  three  of  the  paragraphs  to  which  the  motion  applies 
are  defective  for  another  reason.  In  each  instance,  the  defendants 
state  that  they  have  not  sufficient  knowledge  to  form  a  belief,  and, 
therefore,  they  controvert  the  allegation.  The  defendants  only 
speak  of  their  want  of  knowledge.  Before  they  can  be  allowed 
thus  to  controvert  an  allegation,  they  must  declare  not  only  their 
want  of  knowledge,  but  also  their  want  of  information.  It  may 
well  be  that  tlie  defendants  eoiild  not  say  they  had  no  sufficient 

knowledge  or  information  to  enable  them  to  foi-m  a 
[*439]  '"belief   whether    the  allegations    they    were    answering 

were  true  or  not.  We  have  seen  that  it  is  only  when 
there  is  an  absence  of  such  knowledge  or  information  that  this 
mode  of  answering  is  allowable." 

The  former  practice  in  equity  was  quite  as  strict  in  regard  to 
the  answer  of  a  defendant  on  information  and  belief.  The  case  of 
Rohuimn  v.  Woodgate'  is  an  example  of  this.     In  tluit  case  the 

'  3  Edw.  Ch.  423. 


040  THE   AXSVVER.  [CII.  V. 

answer  alleged  that  the  defendant  "  did  not  know  or  helieve  "  that 
he  M'^as  insolvent.  The  vice-chancellor  held  this  to  be  insufficient. 
The  defendant  was  bound  to  answer  as  to  his  information  on  the 
subject,  if  he  have  any,  and  to  express  his  belief  or  disbelief  founded 
upon  that  information.  If  he  have  no  information,  as  well  as  no 
knowledge,  in  relation  to  the  circumstances  charged,  then  he  need 
not  saj  any  thing  by  way  of  belief.  The  rule  under  the  Code,  as 
indicated  in  the  opinion  of  Judge  Harris,  just  cited,  is  the  same 
with  the  exception  or  addition  that  if  the  defendant  has  no 
personal  knowledge,  but  has  information  from  which  he  does  not 
helieve  the  charge  to  be  true,  he  may  deny  the  charge  on  such 
information  and  belief.  But  a  defendant  can  in  no  case  be  excused 
from  answering  as  to  his  information.  It  seems,  however,  that 
he  may  answer  that  he  has  no  knowledge  or  information  whatever, 
sufficient  to  form  a  belief,  except  what  is  derived  from  the  com- 
plaint.* Though  he  would  not  be  permitted  to  say  that  he  had 
no  knowledge  or  information,  etc.,  except  from  documents 
[*4-iOJ  which  are  not  made  part  of  *  the  answer  and  are  not  set 
forth."  But  when  certain  documents  are  set  forth,  histori- 
cally, in  the  stating  of  the  bill,  the  defendant  must  answer  to  the 
fact  of  the  existence  of  the  documents  according  to  his  knowledge 
or  his  information  and  belief.  He  is  not  bound  to  answer  to  the 
facts  contained  or  stated  in  such  documents,  unless  particularly 
stated  in  the  bill  distinct  from  the  documents.' 

These  were  general  and  well-settled  rules  of  equity  pleading. 
Another  rule  also  well  established,  and  which  has  been  in  several 
instances  applied  under  the  Code  was  this ;  that  where  the  fact  was 
presumptively  within  the  defendant's  personal  knowledge,  or 
was  charged  so  to  be,  he  must  answer  positively,  and  could  not 
answer  to  his  remembrance  or  belief.^  AVliere  he  answers  to  hip 
own  he  must  answer  the  substance  of  each  charge  distinctly  and 
pai'ticularly.' 

The  same  rule  in  substance  has  been  more  than  once  followed 
under  the  Code.  Thus,  in  Jiichard.son  v.  Wilton,*'  in  the  New  York 
superior  court,  to  a  comi)]aint  charging  an  assault,  the  defendant 

'  Tradesmen's  Bank  V.  Ili/att.  2  Edw.  ^  Ante,  pages  431,  432;    Woods  v. 

Ch.  1'J5.  Morrd,  1  Johns.  Ch.  103. 

»  Cnyler  v.  nog''rt,  3  Pi'' -re's  Ch.  186.  »  LTtica  Ins.  Go.v.  iync/t, 3  Paige's  Ch 

3  Mon-it  V.  Pihkcr,  3  Johi.s.  Ch.  397 ;  210. 

Smith  V.  Lasher,  .5  id.  2-17.  «  4  Saiidf.  708, 


SY-C. 


II.]       DEITIAL  ON  INFORMATION  AND  BELIEF. 


541 


denied  knowledge  o.  information  sufficient  ^  ^"\^' :;^ 
the  answer  was  struck  ont  on  motion  as  sliam  or  fi.volous.     lie 
u,t  thought  there  might  be  cases  in  which,  although  apparently 
wU    n  his\nowledge,  the  defendant  does  not  know  or  rememh 

the  facts  alleged.    If  so,  he  n,ust  m  his  answei,  oi  in   lie 
r*44n  ^affidavit  verifying  it,  state  the  lapse  of  time  or  other 
^       "  circumstances  ^hich  he  supposes  will  warrant  the  qualified 
denial  permitted  by  the  Code.    Precisely  the  same  thing  ^^aB 
dedd  d  a  tpecia/term  in  the  New   York  common  pleas  by 
t^Z  J.,  in  M„tt  V.  Burnett;  in  which  the  question  arose  on  an 
„  of  one  of  two  defendants  denying  knowledge  or  mtorma- 
Tn  "tc    whether  said  defendants,  or  Mer  of  then.,  made  he 
Zl  on  ;ilch  action  was  brought.    And  at  genera  term  in  the 
Ime  co^rt  in  Hanoe  v.  Remramg^  the  denial  of  knowledge  or 
nfo  ma"on  sufticient  to  form  a  belief  whether  a  certain  judgment 
of"  the  defendant  had  constructive  but  not  actual  notice  had 
bell  Tendered  or  not,  was  held  to  have  been  properly  struck  out 

"  xlTermit  a  party  so  circumstanced,  says  the  -"^'^^^ 
means'of  knowledge  within  his  power,  to  »--  " ,  ^f^"^ 
knowledge  or  information  snflicient  to  form  a  belief  whethe,  the 

i  rment  was  recovered,  would  be  to  sanction  a  palpable  evasion, 
judgment  w    ^^^^  ^^^^  ^^  ^^^^^^^^  ,^  ^^^  ^^^^^  ^^^^^^      j^    f^^^ 

r*4421v  Zarega-  in  which  the  defendant  *  denied  knowledge 
^     ^  sufficient  to  form  a  belief  whether  the  plamtiiT  had  recov- 
ered a  judgment  against  him,  as  was  alleged  m  the  coinpla.nt 
No  doubt,  there  ar:  cases,  says  the  court,  in  wh.ch  a  de  endan 
may  he  «;  situated  that,  although  ^»«  f«^e  chargeable  wih 
normation  of  the  matter  alleged,  he  may  -^  (jwenng  ™ 
Mod  faith  and  conscientiously)  must  aver  the  want  of  knowledge 
Tinftmation  sufficient  to  form  a  belief.     Probably  an  a  egatuin 
of  a  judgment  in  a  foreign  tribunal  might  if  '!>«  defend.,      was 
not   personally  served   with  process,  turmsh  such   an  example. 

tlwt  the  party  bad  the  mf'"!,";,  "I;"!;?; 


1  1  Code  E.  N.  S.  335. 


.3  Code  B.  N.'S.  301.    [Collin,  v.  '"f    ■"'''^^r°l"o,V«'i»'»  v. /.««.  3 

Swmt.TRoh.m.]  Sow    855,  ind  Ed«>ards   r.  Lent.  8 

■  But,  see  Weason  f.  Judd,  1   AM.  Bow    ou  , 

Pi-.  254.  in  the  name  court,  in  which  Kl-.f  g    jj^.    c„„,.  pi.  C51. 
11  is  held  tliat  auch  an  answer  is  not  1  Sunt" 

pecessarily  evasive,  unless  it  appears 


549 


THE   ANSWER, 


[CII.  V. 


And,  where  sucli  a  state  of  tilings  exists,  it  slionld  be  made  to  ap- 
pear, either  on  tlie  pleadings,  or,  if  a  motion  was  made  to  strike  out 
or  to  disregard  such  an  answer,  then  it  conld  be  shown  by  affidavit. 
According  to  this  rule,  therefore,  a  defendant,  who  lias  the 
means  of  obtaining  information  directly  within  his  reach,  cannot 
use  tliis  qualified  form  of  denial ;  as  in  Wesson  v.  Judd^  also  in 
the  common  pleas,  which  holds  that  a  defendant,  who  admits  that 
he  executed  an  instrument,  cannot  deny  sufficient  information  to 
form  a  belief  as  to  facts  stated  in  sueli  instrument,  or  even  deny- 
that  it  is  correctly  set  forth  in  the  complaint;  he  is  entitled  to 
the  inspection  of  the  original,  which  would  enable  him  to  answer 
positively. 

Though  the  doctrine  seems  to  be  disproved  in  the  case 
[■^MS]  of  Caswell  v.  Biishnell^  where  an  answer  *in  this  form 
which  denied  knowledge  or  information  sufficient  to  form 
a  belief  whether  the  payee  of  a  note  had  indorsed  and  delivered 
the  same  to  tlie  plaintiff,'  yet  the  general  principle  is  recognized 
and  applied  in  the  recent  case  of  Thorn  &  Maynard  v.  Neio 
Yo7'h  Central  Mills.^ 


»  1  Abb.  Pr.  254. 

«  14  Barb.  S.  C.  393,  7  How.  Pr.  117. 

*  The  answer  had  been  struck  out, 
as  ghani,  at  the  special  term.  On 
appeal  to  the  general  term  of  the  first 
district,  it  was  contended  that  the  case 
came  within  the  rule  that  a  defendant 
must  answer  positively  as  to  matters 
which  it  is  presumed  are  within  his 
own  knowledge;  but  the  court  re- 
marked, that  to  require  this  would  be 
to  overturn  the  privilege  given  him 
by  the  Code.  It  is  to  be  observed, 
however,  that  the  nature  of  the  fact 
put  in  issue  in  this  case  is  very  differ- 
ent from  that  of  the  case  of  Richmond 
V.  Wilton,  supra.  Then-  the  act  was 
charged  to  have  been  committed  by 
tlio  defendant  himself,  and  must  have 
been  within  his  personal  knoicledye,  if 
committed  at  all ;  while  in  Cttswell  v. 
B'lshndl,  the  fact  controverted  by  the 
defendant,  the  maker  of  the  note, 
denying  knowledge  or  information, 
etc.,  whether  the  payee  had  indorsed 
or  delivered  it,  was.  not  nt!cessarily 
within  the  personal  knotcledfje  of  the 
defendant  answering  and  could  scarcely 


be  presumed  to  be  so.  The  case  can- 
not be  considered  as  overruling  the 
general  principle  that  a  defendant 
must  answer  positively  to  a  fact  of 
which  he  must  necessarily  have  per- 
sonal knowledge. 

*  10  llow.  Pr.  20.  In  that  case 
Justice  Bacon,  in  a  full  reviow  of  the 
bubject,  very  clearly  points  out  the 
distinction  between  the  case  of  Caswell 
V.  Bnshnell,  and  the  general  principle, 
derived  from  the  equity  practice,  as 
laid  down  in  Richardson  v.  Wilton, 
supra,  and  which  he  considers  the 
correct  principle  of  pleading  under  the 
Code.  The  true  test,  he  thinks,  to  be 
a]iplied  in  determining  when  a  defend- 
ant may  avail  him-'^elf  of  the  j>rivil('ge 
accorded  to  him  of  answering  in  the 
qualified  form  allowed  by  the  Code, 
and  when  he  must  pf)sitively  admit  or 
deny  the  allegation,  is  to  inquire 
whether  the  fact  alleged  is  presump- 
tivtiii  vithin  the  defendant's  knowledfje. 
The  principle  of  the  decision  on  this 
])oint  was  approved  by  the  geneial 
term  ou  appeal,*  and  the  pleading  wag 
held  bad,  although  the  decision  was 


'Reported  under  the  titlo  of  Sherman  v.  The  New  York  Central  Mills,  1  Abb.  Pr.  187. 


SEC.  II.]       DENIAL  ON  INFORMATION"  AND  BELIEF.  543 

[*44'i]       *It  may  be  regai'ded,  therefore,  as  a  settled  principle, 

that  an  answer  palpably  evasive  or  manifestly  false  on  its 

face,  as  a  denial  by  the  defendant  of  knowledge  or  information 

Bufficient  to  form   a  belief  whetlier  he  committed  a  recent  act 

charged  against  him,  must  necessarily  be  bad ;  and  wdiether  tecli- 

nically  a  sham  answer  or  not,  and  whatever  may  be  the  mode  of 

reaching  it  (which  will  be  presently  noticed),  the  defendant  will 

not  be  allowed  to  avail  himself  of  sncli  an  improper  vehicle  of 

defense.     Answers  palpably  evasive,  even  by  way  of  denial,  were 

never  allowed  to  frustrate  the  ends  of  justice,  especially  in  equity  ; 

and  the  courts  always  had  general  power  to  protect  themselves 

and  suitors  against  what  might  be  regarded  as  a  fraud  upon  the 

practice  of  the  court.     The  same  power,  no  doubt,  resides  in  our 

courts,  under  the  new  system. 

The  rules  relating  to  the  precision  of  answers  in  equity  are 

stated  with  great  conciseness  in  Lord  Clarendon's  Order,'  and 

have  always   been    regarded,   and  may  still    be  regarded,  with 

scarcely  any  change  in  the  phraseology,  as  furnishing  a 

[*445]  safe  *  test  of  good   pleading.      An   extract    from  these 

rules  will  not    be  inappropriate,  in   conclusion  of  this 

subject :    "  An  answer   to   a   matter   charged    as   a   defendant's 

own  act  must  regularly  be  without  saying,  'to  his  rememl)rance,' 

or  '  as  he  believeth,'  if  it  be  laid  to  be  done  within  seven  years 

before,  unless  the  court,  upon  exception  taken,  shall  find  cause 

to  dispense  with  so  positive  an  answer;   and  if  the  defendaiit 

deny   the   fact,   he    must   traverse    or    deny   it    (as   the    cause 

re(piires)    directly,  and    not  by  way  of   negative  pregnant ;   as 

if  he  be  charged  with  a  receipt  of  a  sum  of  money,  he   must 

deny  or  traverse  that  he  has  not  received  that  sum  or  any  jDart 

thereof,  or  else  set  forth  what  part  he  hath  received.    And  if  a  fact 

tliouglit  to  be  erroneous  in  treating  the  that  the   dcfenda)i.t  (the   corporation) 

answer   as   frimlous.       The    plaintiff  had    no     knowledge    or    information 

should  have  been  left  to  his  demurrer  sutficient  to  form  a  belief  that   it  did, 

or  application  to  the  court.     It  may  be  at   the   time,   etc.,   by   its   authorized 

added  that  the  facts  in  this  case  furnish  agent,  make  the  note.    Such  an  answer 

a  strong  commentary  on  the  propriety  was  clearly  an  evasion  within  the  well- 

of  establishing  such  a  rule.    The  action  established   rules  of    equity  pleading 

was  against  a  corporation,  on  a  promis-  before  the  Code,  and  the  decision  may, 

sory  note  alleged  to  have  been  executed  no  doubt,  be  regarded  as  a  correct  pre 

to   the  idainTiff  by  the  corporation  by  ced-'ut   to  test   the  suificiency  of   th* 

its  authoi'ized  agent ;  and  the  answer,  answer  under  the  present  system, 
purporting  to  be  verified  by  one  of  the         '  Beanies'  Ord.  Ch.  179. 
directors  of   the    corpoi-ation,  averred 


644  THE  AT^SWER.  [CH.  V. 

be  laid  to  be  done  with  divers  circumstances,  tlie  defendant  must 
not  deny  or  traverse  it  literally,  as  it  is  laid  in  the  bill,  but  must 
answer  the  point  of  substance  positively  and  certainly." 

Where  the  defendant  has  no  knowledge  or  information  sufficient 
to  form  a  belief  as  to  any  of  the  facts  charged  in  the  complaint,  he 
may  so  state  generally,  without  answering  each  allegation  separ- 
ately, and  put  the  whole  matter  in  issue  by  such  general  traverse. 
Or  he  may  answer  one  or  more  of  the  allegations  by  a  positive 
denial,  or  admit  one  or  more  to  be  true,  as  in  Genesee  Mutual  In- 
surance Co.  V.  Moynihcn,^  and  answer  the  residue  in  the  general 
form  of  traverse,  that  he  has  no  knowledge  or  information 
[*446]  sufficient  to  form  a  belief."  Or  he  *  may,  in  this  form, 
take  issue  upon  one  or  more  of  the  material  allegations  in 
the  complaint,  leaving  the  residue  unanswered.  Or,  pursuing  the 
practice  indicated  in  Edv^ards  v.  Lent^  and  similar  cases  above 
cited,  he  may  deny  some  of  the  allegations  positively;  others,  not 
presumptively  within  his  own  knowledge,  on  information  and 
belief;  and  as  to  others,  deny  any  knowledge  or  information  suffi- 
cient to  form  a  belief. 

There  was  also  another  mode  of  denial  practiced  in  equity, 
which  appears  important  to  notice,  and  which  does  not  seem 
to  be  inconsistent  with  the  provisions  of  the  Code  on  this  subject. 
Statements  or  charges  might  be  made  in  the  bill,  which,  though 
true  in  part,  were  yet  substantially  incorrect,  and  which,  there- 
fore, it  might  be  necessary  to  add  to,  qualify  or  explain.  To 
statements  of  this  nature  the  defendant  may  not  be  able  to  give  a 
direct  answer  in  the  first  instance,  and,  therefore,  lie  might  state 
the  case  according  to  the  fact,  and  conclude  by  denying  that  the 
particular  statement  or  charge  is  true,  "further  or  otherwise" 
than  as  explained.*  "  This,"  says  Mr.  Lube  in  his  scientific  analy- 
sis of  the  principles  of  equity  pleading,  "  is  the  meaning  of  a 
traverse  in  an  answer,  so  frequently  to  be  met  with  in  the  books, 
as  contradistinguished  from  a  direct  denial,  and,  although  it  is 
now  marked  by  the  technical  words  absque  hoc,  it  is,  to  all  intents 
and  purposes,  a  traverse,  being  preceded  by  an  induce- 
p447]  ment  *  of  matter  inconsistent  with  the  statement  of  the 

'  5  How.  Pr.  321.  »  8  How.  Pr.  28. 

'  Utir.a  Ins.  Co.  v.  Lynch,  3  Paige,        *  But  see  ante,  marg.  pp.  409,  430. 
210,  Lube's  Eq.  PI.  269. 


SEC.   II.]  OBJECTION   TO   DEFECTIVE   DENIAL.  545 

complainant,  but  whieli,  without  the  denial  in  the  conclusion, 
would  not  tender  an  issue."  '  In  equity  the  defendant  might 
put  the  allegation  in  the  bill  in  issue  by  a  general  traverse  at 
the  conclusion  of  the  answer,'  and  it  was  formerly  the  custom 
to  insert  immediately  preceding  the  general  traverse,  a  particular 
traverse  of  those  parts  of  the  bill  which  the  defendant  meant  to 
deny.'  A  similar  practice  has  obtained  under  the  Code,  namely, 
denying  specifically  certain  allegations  of  the  complaint,  and  then, 
by  a  general  denial,  taking  issue  on  the  residue,  or  on  all  such 
other  matters  as  are  not  specifically  denied  or  answered.  Under 
the  decision  in  Dennison  v.  Dennison,  cited  stipra*  that  the 
defendant  must  elect  whether  he  will  use  the  general  or  specific 
denial,  it  has  been  doubted  whether,  in  an  answer  assuming  to 
deny  specifically  each  and  all  the  material  allegations  in  the  com- 
plaint, this  general  form  of  traverse  in  the  conclusion  can  be  made 
available  for  any  purpose,  that  is  to  say,  if  some  one  or  more  of 
the  specific  denials  should  prove  to  be  defective  or  insufiicient  on 
the  trial,  whether  it  will  be  aided  by  the  general  traverse  in  the 
conclusion  of  the  answer.     Upon  this  point  I  believe  we  are  yet 

without  the  light  of  any  decision. 
[*44:8]       *Mere  denials  in  an  answer,  it  is  said,    need   not   bo 

separately  stated,  as  separate  defenses.  The  section  of 
the  Code  requiring  this  to  be  done  has  been  held  to  apply  only 
to  afiirmative  defenses.* 

The  mode  of  raising  the  oljection  to  a  defective  denial  presents 
a  more  difficult  question.  In  some  of  the  cases  above  cited  it  was 
done  on  denmrrer ; '  and  although  since  the  decision  of  these  cases 
it  has  been  held  that  a  demurrer  would  not  lie  to  a  merely  defen- 
sive answer,  or  at  least  that  it  would  in  no  case  lie  to  an  answer 
consisting  of  a  mere  denial,''  yet  the  recent  amendment  of  the 
Code,  providing  that  "  the  plaintiff  may  in  all  cases  demur  to  the 
answer  for  insufficiency," '  as  I  understand  it,  has  restored  the 
practice  of  allowing  the  plaintiff  to  take  an  objection  to  the  insuffi- 

*  Lube's  Eq.  PI.  277.  «  Hopkins  v.  Everett,  6  How.  Pr.  159 ; 

*  Utira  Ins.  Co.  v.  Lynch,  3  Paige's  SaUinger  v.  Lusk,  7  id.  430;  Arthur  v. 
Ch.  210.  Brook.s,  14  Barb.  S.  C.  584. 

2  Lube's  Eq.  PI.  277.  '  See  this  subject  discussed  and  cases 

*  9  How.  Pr.  24G.  cited  in  the  chapter  on  demurrer,  post, 
'  Code,  §  150 ;  Otis  v.  Ross,  8  How.     ch.  vii,  §  3. 

Vt  193.  «  Laws  of  1855. 

69 


646  THE  ANSWER.  [CH    V. 

ciency  of  the  answer  by  demurrer,  whether  the  answer  consist  of 
new  matter  or  of  a  mere  denial  Former  decisions,  holding  that 
a  demurrer  to  a  mere  denial  would  not  lie,'  were  made  under  the 
peculiar  phraseology  of  the  Code  before  the  recent  amendment, 
which  it  was  held  conlined  the  demurrer  in  terms  to  "  new  matter" 
or  a  "counterclaim."  But  the  language  is  now  general 
[*M9]  *that  the  plaintiff  may  in  all  cases  dermir  to  the  answer 
for  insufficiency.  The  practice,  therefore,  indicated  in  the 
recent  case  of  Sherman  v.  The  New  York  Central  Mills^  is  doubt- 
less correct,  that  where  the  question  as  to  the  frivolousness  or 
insufficiency  of  such  an  answer  may  be  regarded  as  doubtful,  the 
plaintiff,  if  he  desire  to  raise  it,  should  be  left  to  his  demurrer. 

Another  mode  of  taking  the  objection,  in  cases  of  evasive  or 
otherwise  defective  denials,  has  been  by  summary  motion,  either 
to  strike  out  as  sham  or  irrelevant  or  for  judgment  as  frivolous." 
But  the  motion  for  judgment  on  account  of  the  frivolousness  of 
the  answer,  according  to  the  case  last  cited,^  should  be  allowed 
only  where  .the  answer  is  so  palpably  frivolous,  under  the  most 
obvious  rules  of  pleading,  as  to  raise  the  presumption  that  it  was 
put  in  only  for  delay.  And  a  verified  answer,  raising  an  issue 
in  form,  will  not  be  struck  out  as  sham.,  nor  will  a  mere  denial  be 
so  disposed  of,  though  not  verified ;  the  defendant  has  the  right 
to  have  such  an  issue  tried  in  the  usual  way.*^  This,  of 
['"450]  *course,  will  shut  out  a  large  class  of  cases  where  insuffi- 
cient denials  might  otherwise  have  been  reached  on  sum- 
mary motion.  It  is  intimated,  also,  in  one  case '  that  imperfect 
and  insufficient  denials  cannot  be  corrected  on  motion  to  make  the 
pleadings  more  definite  and  certain  by  amendment,  the  section  of 
the  Code  allowing  such  a  proceeding  being  thought  to  apply  only 
to  affirmative  defenses. 

-  Smitli  V.    Grcenin,  2  Sandf.   702 ;  *  Sherman  v.  N.   Y.  Central  Mills,  1 

KHcJiam  v.  Zaroga,  1  Smith's  Com.  PL  Abb.    187  ;   overruling   on    this  point 

557;  and  per  Hand,  i.,\n  Kneedler  v.  same  case  at  special  terra.     10  How. 

Sternburgh,  10  How.  Pr.  67.  Pr.  19. 

2  1  Abb.  Pr.  187.  '  Winne  v.  Sickles,  9  How.  Pr.  217. 

^Nichols  V.  Jones,  6  How.-  Pr.  355;  {ThompHonv.  Erie  Railway  Company, 

Plump  V.  Harrop,  7  id.  57;  Conklin  v.  45  N.  Y.  468;   Wayland  v.  Aymer,  id. 

Vandermort,  7  id.  48:} ;  Ednon  v.  Dill-  281 ;   Allis    v.    Leonard,  46    id.    688. 

aye,  8  id.  273;  Flammer  v.  Kline,  9  id.  These  cases  substantially  disapprove 

216'-  Fleury  v.  Broion,9\A.  217  ;  Fleury  of  the  case  of  People  v.  McCumber,  18 

V,  Rofjet,  9  id.  217  ;  5  Sandf.  646  ;  Lefferts  N.  Y.  315  (45  id.  283.)] 

V.  Snediker,  1  Abb.  Pr.  41,  and  similar  «  Otis  v.  Ross,  8  How.  Pr.  193. 
zasen 


SEC.  III.]  STATEMENT   OF   NEW   MATTEE.  547 

If  the  defeaive  denial,  ho^vever,  be  manifestly  imperfert  or 
evasive,  it  may  be  reached  on  summary  moUon  for  judgment  on 
account  of  &efdvoUumesx  of  the  answer  under  section  247,  or, 
Ts^me  eases,;erhaps,  by  motion  tostriheoutas.n-.^«,»un^^^^ 

section  152.'    Or,  where  no  ob  ect.on  is  taken  untd  tlie  trial  such 
eva   ve  answer,  raising  no  material  issue    may  be  regarded  as 
nugatory,  and   as  not  controverting  the  tact  or  faets  wteh  rt 
°       iLumes  to  controvert,  and  the  answer  may  be  read  as  an 
r*451 1  admission  of  the  facts  so  attempted  to  he  put  m  isstte ;      or 
these  defective  or  immaterial  issues  may  be  entirely  disre- 
garded by  the  court  on  the  trial  and  laid  out  of  the  case  altogether  _ 
%he  motion  for  judgment  on  account  of  the  fnvolousness  of 
the  answer  can,  of  course,  be  adopted  only  when  there  is  no  other 
ssue  of  fact  in  the  case.     The  motion  to  strike  out  as  irrelevant 
(where  such  motion  may  properly  be  made)  can  be  used  e.  her 
when  the  defective  denial  stands  alone,  or  is  coupled  with  otter 
denials  which  raise  material  issues  of  fact  to  ^e  tried      The 
subieet  will  be  considered  more  fully  in  a  subsequent  part  of  tins 
wo  k,  in  the  section  on  ,ham,  irrelevant,  and  fri^oJ^J  answers 
and  defence.;  and  in  that  which  treats  of  the  effea ^  ofpM^n^, 
and  what  facts  are  to  he  deenud  admitted  on  the  triat. 

r,^52]  *  SECTION  III. 

STATEMENT  OF  HEW  MATTER  IN   THE   ANSWER. 

In  addition  to  the  general  or  specific  denial  required  by  the 
Code,  the  answer  must  also  contain,  if  necessary  to  the  defendant  s 

defense : 

T  a  TT^xrr    T>r    ^'^'^      strict  sense,  be  called  MTcZe^jari^.  Never- 

1  mchols  V.  Jones,  6  How    Pr.  ,555      strict  sense  ^^  ^^^^ 

In  this  case  Judge  Barculo  has  drawn  ^^^f  «f^^'' i^;\^;'fi;ition  given  of  irrelevant 

the  line  of  distinction  very  clearly  be-  ^^\YeVL  formi^^^^^  ^•^•^^'^. 

tween   sham   and   frivolous   answers.  f^^"f;,;f^'*J";"a"f  and  which  ought  not 

The  latter   were  held   to   embrace   a  "^^^^f^^^^^^  the^ecord 

mere  evasive   denial  which  raises  no  t".^^^,^^^™;^  opposite  party. 

Kis  concurs,  in  mm?,ev.«b«/a6S,  J  rxuw 

317.     See,  also,  T/wr?zv.iy^.  F.  Central  Pl.5^,^4^  ^   ^^^^^^  ^  ^^^   p^_  ^3.  ^^ 

Mills,  10  id.  30.  ^^^^1    •       -Rirhtmver   v.  Ilaskiiis,   9 

»Tiie  subject  of  irrelevant  answers  proved    ^{}  ^^^'^^^Xai^^a  Mat.  Ins. 

will    be   considered   in   a   subsequent  id.  448 ,  JVy'^tt  v.  oa,      y 

section  of  this  chapter.     It  might  be  ^'4-  !  •  f«|-  .  ^ 

doubtful  whether  a  mere  denial   how-  C   ap  5,  |  0. 

f^ver  evasive  or  defective,  could,  in  a  ^..Hap.  i.^o. 


548  THE  ANSWER.  [CH.   V. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language,  without  repetition.^ 

This  provision  is  not  substantially  different  from  the  original 
Code,  or  the  Code  as  amended  in  1849  and  1851,  except  in  the 
introduction  of  the  word  "  counterclaim "  in  place  of  the  words 
"set-off","  inserted  in  the  section  by  the  amendment  of  1852.* 

In  treating  the  subject  of  the  defendant's  answer,  in  respect  to 
the  statement  of  new  matter,  I  shall  adopt  substantially  the  course 
taken  in  the  preceding  chapter,  treating  of  the  complaint.  The 
statement  of  new  matter,  and  particularly  of  the  counterclaim  on 
the  part  of  the  defendant,  is,  in  most  respects,  analogous  to  the 
statement  by  the  plaintiff  of  his  cause  of  action.  The  one 
[*453]  is  the  allegation  by  the  *  party  demanding  relief;  the 
other  is  the  allegation  by  the  party  defending,  or  claiming 
on  his  side  such  affirmative  relief  as  may  be  properly  administered 
in  the  same  action.  Many  of  the  general  rules  of  pleading, 
therefore,  both  those  provided  by  the  Code,  and  those  adopted  by 
the  old  system,  are  equally  applicable  to  the  statement  of  the 
defendant's  defense  as  to  the  plaintiff' 's  cause  of  action  ;  and  it 
will  be  necessary,  therefore,  only  to  refer  to  what  was  said  on 
these  subjects  in  the  previous  part  of  this  work. 

1st.  What  matters  must  he  alleged  hy  the  defendant.  In  a 
previous  section,^  the  question  was  briefly  alluded  to  whether, 
under  the  Code,  it  is  necessary  to  set  up  in  the  answer,  as  new 
matter,  any  thing  which  merely  goes  to  show  that  no  sufficient 
cause  of  action  ever  existed,  or  whether  such  matter  m.ay  be  given 
in  evidence  under  the  general  denial ;  and  the  conclusion  arrived 
at  in  the  case  of  Benedict  v.  Seym^our*  adopted,  namely :  that 
a  defense  which  goes  directly  to  controvert  or  disprove  any 
mat&rial  allegation  of  the  compla,int^  may  be  given  in  evidence 
under  a  general  or  special  traverse,  and  should  be  so  pleaded ; 
every  other  defense  must  be  specially  pleaded  as  new  matter.  The 
subject  is  of  sufficient  importance  to  require  some  further  inves- 
tigation. 

'  Sub.  2,  §  149.  The   words    "or  set-off"    were  not 

"^  Tlie  subdivision  of  this  section,  as  found  in  the  original  Code,  or  in  the 

amended  in  IHol,  read  as  follows :  amendment  of  1849. 

3.  A  plain  and  concise  Htatemcnt  of  ^  Section  1,  chap.  5,  &ntG,  marg.  pp. 
any  matter  constituting  a  defense  or  400,  401^. 

«et-off,  without  unnecessary  repetition.  *  6  How.  Pr.  298. 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  549 

It  is  observed  in  the  first  place  that  the  defendant's  statement 
is  to  be  of  "  Any  new  matter  constituting  a  defense^ 
[^454:]  What,  then,  is  this  "new  matter"  *  which  the  defendant 
is  required  to  plead,  and  what  is  "  a  defense  "  within  the 
meaning  of  the  Code?  Both  these  terms  have  been  the  subject 
of  repeated  judicial  construction  since  the  Code;  but  without 
entering  into  a  full  analysis  of  the  cases,  *it  will  be  sufficient,  in 
this  place,  briefly  to  indicate  two  general  conclusions  which  ] 
think  may  be  safely  drawn  from  them  :  First,  that  the  new  matter 
constituting  a  defense,  spoken  of  by  the  Code,  comprises  a  variety 
of  matters  which  under  the  old  common-law  pleadings  need  not 
-  have  been  specially  pleaded,  but  might  have  been  given 
[*4:55]  in  evidence  *under  the  general  issue.  And  second,  that 
it  comprises  also  matters  which,  under  that  system,  coidd 
not  have  been  specially  pleaded,  such  as  partial  payment,  recoup- 
ment, and  the  like,  and  which  now  must  be  set  up  in  the  answer 
in  order  to  admit  proof  of  them  on  the  trial.  I  shall  have 
occasion,  in  a  subsequent  part  of  this  section,  to  consider  how  far 
the  terms,  new  matter  and  defense  also  include  matter  in  mitiga- 
tion of  damages,  as  in  an  action  of  libel,  assault  and  battery,  and 
the  like.  ^ 

This  view  of  the  subject,  it  is  believed,  has  been  usually  adopted 
in  practice  under  the  new  system.     Such  was  said  to  be  the  rule 


♦  In  HinKjhton  v.  Tnwmeud,  8  How.  Pr.  443,  Justice  Marvin  discusses  the  meaning 
ol  the  word  defense  in  the  Code  ;  and  thinks  it  is  not  properly  applicable  to  a  mere 
deniaJ,  but  refers  to  new  matter;  and  that  the  new  matter  need  not  be  such  as  techni- 
cally constitutes  a  bar  to  the  action,  but  may  include,  as  in  an  answer  in  chancery,  a 
defense  pro  tanU>,  or  a  partial  defense,  such  as  payment,  and  the  like.  In  Stoddard  v. 
0)iomlctga  Annual  Conference,  TiS  harh.  673,  we  meet  the  following  definitions:  "New 
matter  constituting  a  defense,  under  the  Code,  must  be  taken  to  mean  some  fact, 
which  the  plaintiff  is  not  bound  to  prove,  in  order  to  make  out  his  cause  of  action, 
and  which  goes  in  avoidance  or  discharge  of  the  cause  of  action  alleged  in  the  com- 
plaint. If  the  plaintiff  is  bound  to  prove  a  fact,  in  order  to  establish  his  cause  of 
action,  not  alleged  in  his  complaint,  the  defendant  need  not  allege  the  contrary  in  his 
answer.  He  may  controvert  such  fact  upon  the  trial,  on  the  introduction  of  the  evi- 
dence by  the  other  party,  without  any  allegation  in  his  answer  upon  the  subject.  Any 
allegation  in  the  answer  in  regard  to  such  matter  would  be  entirely  unnecessary  and 
Improper.  But  every  matter  of  fact  which  goes  to  defeat  the  cause  of  action,  and 
which  the  plaintiff  in  not  under  the  nece^my  of  proving  in  order  to  make  out  his  case, 
must  be  allesed  in  the  answer,  there  being  now  no  general  issue  under  which  it  maybe 
proved.  This  is  new  matter."  In  other  words,  as  I  understand  it,  every  fact  which 
the  plaintiff  is  bound  in  the  first  instance  to  prove,  in  order  to  sustain  his  action, 
muat  be  put  in  issue  by  a  simple  denial,  general  or  specific.  Every  other  matter  of 
defense  must  be  pleaded  in  the  answer. 


550  THE  ANSWER.  [CH.  V. 

by  Justice  Welles,  in  Edson  v.  Dillaye^  and  it  was  tliouglit  that 
not  only  was  proof  of  payment  inadmissible,  unless  set  up  in  the 
answer,  hut  so  also  as  to  any  other  imaginable  defense."  And  in 
Hoioghton  v.  Townsend^  above  cited,  the  court  at  general  term, 
on  full  deliberation,  decided  that  there  was  now  no  way  in  which 
a  defendant  could  avail  himself  of  the  defense  even  oi jpartial  j^ay- 
ment^  without  pleading  it.* 

Occasionally,  since  the  Code,  the  courts  have  held 
[*456]  language  at  variance  with  the  foregoing  view^s.  *Some  of 
the  judges  have  exhibited  a  marked  preference  for  the 
application  of  the  principles  of  common-]aw  pleading  to  answers 
in  cases  of  common-law  origin,  especially  on  the  subject  of  plead- 
ing a  partial  defense.  Thus,  in  Kneeder  v.  Steenburgh,"  Justice 
Hand  remarks,  in  regard  to  the  defense  of  a  partial  failure  of  con- 
sideration :  "  With  all  respect  for  those  who  may  think  diiferently, 
I  find  no  rule  in  the  Code  by  which  either  a  partial  defense  of 
matter  in  mitigation  may  be  pleaded  alone,  any  more  than  for 
merly ;  especially  when  the  actionor  defense  does  not  belong  to 
equitable  jurisdiction.  Perhaps  mitigating  circumstances,  in  ati 
action  for  a  libel  or  slander  (with  justification)  and  set-oif,  are,  iu 
a  degree,  exceptions.  But  the  same  reason  for  requiring  tho 
defendant  in  his  plea  to  meet  the  wdiole  of  the  declaration,  or  of  a 
count,  by  denial,  or  matter  in  avoidance,  or  opposing  claims,  or 
by  confession,  or  by  some  or  all  of  those  defenses  combined,  still 
exists.  The  Code  only  abolishes  the  'forms'  of  pleading,  not 
principles.  It  seems  to  me  that  the  old  rule,  that  such  matters 
may  be  given  in  evidence,  still  exists." 

So  far  as  the  above  relates  to  matters  merely  in  mitigation  of 
damages  in  an  action  other  than  of  libel  and  slander,  it  may, 
perhaps,  be  correct.  Such  matter  may  not  properly  be  a  "  defense  " 
to  be  set  up   in  the  pleadings,   but,  if  pertinent  to  the  issue, 

'  8  How.  Pr.  272.  See,  &\m,Gicssonv.  with  the  rule  requiring  the  facts  ih^m- 

CHfSSon,  1  Code  R.  N.  S.  414.  selves  to  be  pleaded  ;  and  not  the  mere 

■■^  In  Pattersonv.  Taylor,  7  Barb.  250,  legal  inference \Qs\i\t\ng  from  the  facts. 

Justice    H.\ND   held    that    facts   from  ^  8  How.   Pr.   441.      See,   also,   this 

which  the  law  rai.se.-s  sl prcimmption  of  subject  discussed  in  Bush  v.  Frossfr, 

pajTnent  should  be  pleaded  as  a  pay-  in  the  court  of  appeals,  1  Kern.  247, 

ment  under  the  Code.     The  case  may  352. 

be  regarded  as  a  case  in  point  to  show  ■*  [McKyring  v.  Bull,  IfJ  N.  Y.  207,  but 

that  the  payment  as  an  entire  defense  see  41  id.  349,  46  id.  672.] 

must  be  pleaded  ;  but  it  is  at  variance  '  10  How.  Pr. 


BEO.  III.]  STATEMENT   OF  NEW   MATTEK.  551 

[*457]  maj  be  given  in  evidence  under  the  denial  within  the 
rule  laid  down  in  Smith  v.  Waite,^  and  kindred  cases. 
But  it  is  assuming,  I  apprehend,  an  untenable  position  to  say- 
that  nothing  but  a  full  defense  to  the  action,  or  what  was  before 
regarded  as  a  plea  in  bar,  is  now  properly  pleadable  in  an 
answer  on  the  merits ;  or  that  a  partial  defense,  such  as  partial 
payment,  or  failure  of  consideration,  recoupment,  and  the  like, 
can  be  made  available  without  being  pleaded.  The  subject  is 
very  correctly  considered  in  the  case  of  Willis  v.  Taggard^  in 
respect  to  the  defense  of  recoupment,  and  the  reasoning  will 
equally  apply  to  other  cases  of  mere  partial  defense,  properly  so 
called,  and  it  was  held  that  there  was  no  way  in  which  a  partial 
defense  could  be  taken  but  by  answer.  The  court  adverted  to 
the  fact  that  recoupment  could  have  been  given  in  evidence  for- 
merly, under  a  notice,  with  the  general  issue ;  but  as  there  is  now 
no  general  issue  to  which  a  notice  can  be  subjoined,  such  a  defense 
must  be  taken  by  answer;  it  is  clearly  a  defense  as  far  as  it 
goes,  though  not  necessarily  a  defense  to  the  whole  action.' 
[*458]  ^In  addition  to  this  it  may  be  suggested  that  the  answer 
itself,  of  "new  matter  constituting  a  defense,"  now  that 
a  reply  thereto  is  neither  necessary  nor  proper,  is  but  little,  if 
any  thing,  more  than  the  old  notice  of  special  matter  annexed  to 

'  7  How.  Pr.  277.  '  the  defenses  '  of  a  party  to  an  action. 
'  6  How.  Pr.  433.  It  can  hardly  be 'that  the  legislature 
^  Since  the  foregoing  was  written,  intended  that  when  a  party  could  not 
the  case  of  Bush  v.  Prosser  has  been  make  a  full  defense  to  an  action,  and 
reported  (1  Kern.  347),  in  which  this  could  not,  therefore,  with  truth,  allege 
subject  was  brought  under  review  in  facts  constituting  a  full  defense,  or 
the  court  of  appeals.  The  significa-  fully  deny  the  case  made  by  the  plain- 
tion  of  the  terms  "  new  matter "  and  tiif,  that  he  should  be  denied  the 
"  defense,"  as  understood  in  that  court,  privilege  of  alleging  in  his  answer 
Is  substantially  in  accordance  with  the  and  establishing  by  his  proof  a  partial 
foregoing  views.  In  the  opinion  of  defense,  or  alleging  and  proving  miti- 
the  court,  as  given  by  W.  F.  Allen,  gating  circumstances,"  etc.,  etc.  And 
J.,  it  is  said:  "xVlthough  defense  may  he  arrives  at  the  conclusion,  on  this 
mean,  literally,  a  denial  of  the  truth  or  branch  of  the  subject,  that  a  defendant 
validity  of  the  complaint,  an  assertion  may  properly  spread  upon  the  i-ecords, 
that  tiie  plaintiff  has  no  ground  of  as "  a  defense,"  a  matter  of  partial  de- 
action,  it  has  ceased  to  mean  a  justifica-  fense  merely,  or  tending  to  reduce  the 
tion,  and  as  now  used  by  courts  and  plaintiff's  claim  ;  and  that,  in  an  action 
judges  it  is  applied  to  matters  which  of  libel  or  slander,  facts  in  mitigation 
go  to  the  partial  as  icell  as  total  extin-  of  damages  merely,  may  and  s-hould  be 
guishment  of  the  plaintiff's  claim  ;  and  pleaded,  even  where  no  full  justifica- 
ihe  terms  total  and  jiartial  defense  ti(»n  is  set  up.  [These  remarks,  how- 
have  become  quite  familiar,  and  may  ever,  should  be  restricted  to  the  cases 
well  be  supposed  to  have  been  in  the  provided  for  by  section  165  of  the  Code, 
mind  of  the  legislature  when  they  Gilbert  v.  Rounds,  14  llow.  4G.j 
ppoke  of  the  '  grounds  of  defense '  or 


5o2  THE   ANS^VEK.  ^CU.  V. 

the  geiicral  issue.  Such  notice,  tliougii  not  required  to  be  in  the 
strict  Uchnical  fonn  of  a  plea,  must  contain  all  the  facts  necessary 
to  be  stated  in  a  special  plea,'  It  must  fairly  apprise  the  plaintiff 
of  the  material  facts  on  which  the  defendant  means  to  insist,  <_>ther- 
wise  the  matters  could  not  be  given  in  evidence  under  the  general 
issue  on  the  trial."  And,  though  it  must  truly  state  the  facts,  yet 
an  immaterial  variance  was  overlooked,'  and  it  was  not  regarded 
with  the  same  criticism  and  nicety  as  a  special  plea.*     Like  the 

defensive  answer  of  the  Code,  no  reply  to  it  was  necressary 
[*459]  or  proper,  and  questions  upon  its  sufficiency  were  *mostly 

raised  on  the  trial,  in  the  introduction  of  evidence  in  sup- 
port of  its  allegations.  The  analogy  between  the  notice  of  the 
old  practice,  and  the  answer  of  "  new  matter,"  therefore,  if  not 
complete,  is  certainly  strong. 

I  do  not  say  that  every  thing  which  was  allowable  in  a  notice 
of  special  matter  with  the  general  issue  may  be  now  pleaded 
in  the  answer,  for,  under  the  Code,  a  larger  power  is  given  to 
the  courts  to  strike  out  redundancies  from  pleadings ;  but  it 
seems  to  me  that  all  those  partial  defenses  which  could  not  be 
given  in  evidence  without  notice,  such  as  abatement  of  damages 
going  to  a  jpai't  of  the  consideration,  and  other  cases  of  recoup- 
ment,' set-off,  etc.,  etc.,  must  be  so  pleaded  under  the  new  system 
in  order  to  be  available;  and,  it  seems,  also,  within  the  decisions 
above  cited,  partial  payment,  part  failure  of  consideration,  and  the 
like.  Those  who  contend  for  the  strict  theory  of  common-law 
pleadings  in  regard  to  this  branch  of  defenses  are  apt  to  lose 
sight  of  the  true  character  and  office  of  an  answer  under  the  Code ; 
of  the  fact  that  it  is  nearer  the  notice  than  the  special  plea  of  the 
old  system,  and  especially  the  important  fact  that  it  assimilates 
itself,  in  every  respect,  to  the  answer  in  chancery,  or  at  least  blends 
the  equitable  answer  with  the  common-law  special  plea. 

The  strong  analogy  between  pleadings  in  equity  and  at 
[*460]  law,  so  often  lost  sight  of  in  elementary  *  treatises,  as  well 

as  in  the  decisions  of  our  courts,  is  admirably  elucidated 
by  Mr.  Lube  in  his  critical  analysis  of  equity  pleadings  ;*  and  a 

'  Shepard  v.  ^ferHll,  13  Johns.  475  ;  '  Kane  v.  Sanger,  14  Johns.  89. 

Lawrence,  v.  Kneiss,  10  id.  140.  •*  Brooks  v.  Bemis,  8  Johns.  455. 

''  Edwards    v.    demons,   24  Wend.  '  Van  Eppa  v.  Harrison,  5  Hill,  63. 

480.  •  Lube'B  Eq.  PL,  part  2,  ch.  1,  §  111 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  553 

careful  consideration  of  the  subject  in  this  light  will  serve  to  give 
a  clearer  insight  into  the  subject  under  discussion.  He  notices 
the  double  character  of  the  answer,  first  as  a  jpUa  and  second  as 
jproof.  The  latter,  we  have  seen,  has  no  place  under  the  Code/ 
In  its  character  as  a  plea  the  answer  in  chancery  served  the  double 
purpose  of  the  general  issue  at  common  law  and  a  special  plea  in 
bar ;  that  is  to  say,  it  was  the  invariable  rule  at  common  law  that 
every  defense  which  could  not  be  specially  pleaded  might  be  given 
in  evidence  under  the  general  issue.  In  equity  the  rule  was  that 
all  matters  of  defense,  which  were  not  the  proper  subject  of  the 
plea,  might  be  stated  in  the  answer.''  The  plea  in  equity  and  the 
special  plea  at  common  law  performed  substantially  the  same 
office.  If  the  defense  at  law  was  not  a  full  defense  to  the  count 
or  cause  of  action,  such  as  partial  payment  and  the  like,  it  could 
not  be  pleaded  at  law,  and,  consequently,  it  came  in  under  the 
general  issue.  In  equity  there  was  no  general  issue  proper, 
and  all  such  matters,  therefore,  were  allowed  to  be  stated  in 
the  answer  by  way  of  defense ;  and,  indeed,  almost  every  thing 
w^hich  might  have  a  bearing  on  the  result  of  the  controversy  was 
proper  to  be  alleged.  "  If  the  matter  of  an  answer  is 
[*461]  relevant,"  *  says  the  chancellor  in  Van  Rensselaer  v.  Bria^ 
"  that  is,  if  it  can  have  any  influence  whatever  in  the  decision  of 
the  suit,  either  as  to  the  subject-matter  of  the  controversy,  the 
particular  relief  to  be  given,  or  as  to  the  costs,  it  is  not  imper- 
tinent," The  equity  answer,  therefore,  either  1st,  traversed  and 
denied  the  particular  allegations  of  the  bill ;  or,  2d,  it  admitted 
them  to  be  true;  or,  3d,  it  confessed  and  avoided  such  points  as 
need  not  be  specially  pleaded  to.  These  are  the  several  parts  of 
an  answer  as  laid  down  in  the  books  on  practice  ;*  and  this,  as  I 
understand  it,  is  precisely  the  nature  of  the  answer  of  the  Code. 
We  are  now  prej)ared  to  take  a  further  step  in  the  inquiry  with 
which  this  branch  of  the  subject  was  commenced,  namely,  whether, 
under  the  Code,  it  is  necessary  to  set  up  affirmatively,  in  the 
answer,  any  thing  which  merely  goes  to  show  that  no  valid  cause 
of  action  ever  existed,  and  to  consider  the  subject  in  connection 
with  some  recent  cases. 

•  See  ante,  pp.  392,  393,  marg.  p.  *  4  Paige's  Ch  174. 

*  Lube's  Eq.  PI.  178,  Mitf.  Eq.  PI.  249.        *  Lube's  Eq.  PI.  178. 

70 


554  THE   ANSWEK.  [CH.  V. 

In  the  former  edition  of  this  work  it  was  stated  that,  within  the 
principle  laid  down  in  Benedict  v.  Seymour^  suj>ra,  that  whatever 
goes  directly  to  controvert  or  disprove  a  material  allegation  in 
the  plaintiffs  complaint  maybe  given  in  evidence  under  a  general 
or  specific  denial  of  such  allegation,  it  was  thought  that  any  fact 
going  to  show  a  contract  actually  void  in  its  inception 
[*462]  might  be  given  in  evidence  *  under  such  a  denial. 
Though  the  proposition,  as  thus  stated,  may  need  some 
qualification,  I  am  still  inclined  to  think  it  substantially  correct. 
I  am  aware  that  the  contrary  has  been  said  upon  very  high 
authority,  in  the  case  of  Catlin  v,  Gunter^  holding,  that  the 
Code  has  given  no  sanction  to  the  revival  in  any  form  of  a  general 
issue,  under  which,  facts,  in  their  nature  constituting  a  defense, 
although  not  averred  in  the  answer,  may  be  given  in  evidence 
upon  the  trial.  The  general  proposition  thus  laid  down  may  be 
regarded  as  incontrovertible.'  But  the  court,  in  that  case,  goes 
beyond  this  obvious  principle,  and  indeed  beyond  the  particular 
facts  in  the  case  under  discussion,  and  remarks  that  "  facts  tending 
to  prove  that  a  promissory  note,  or  any  other  contract,  was  void 
in  its  origin  upon  the  ground  of  usury,  fraud,  duress,  etc.,  are,  in 
their  nature,  just  as  certainly  matter  of  defense  as  facts  sub- 
sequently arising;  and  there  exists,  consequently,  the  same 
necessity  for  averring  them  specifically  in  the  answer."  In 
answer  to  this,  it  may  be  said,  in  the  first  place,  that  the  plaintiff 
is  bound  to  set  forth  and  prove  a  valid  contract.  So  it  is  admitted 
in  the  opinion  referred  to :  "  The  complaint  must  distinctly  aver 
all  those  facts  which,  if  denied,  the  plaintiff  must,  in  the  first 
instance,  prove  upon  the  trial,  in  order  to  maintain  his  action." 
His  complaint,  for  example,  must  show  a  consideration  on 
[*463]  its  face,  *except,  indeed,  in  those  cases  where  a  considera- 
tion is  implied  in  law.*  Suppose  the  defendant  deny  the 
consideration^  is  not  the  plaintiff  bound  to  prove  a  valid  one  to 
sustain  his  action  ?  And  if  he  show  a  prima  facie  consideration, 
may  not  the  defendant  "  controvert "  it,  by  showing  it  to  be 
illegal,  or  in  short  no  consideration  at  all  ? 

And,  so,  if  in  an  action  on  contract  the  plaintiff  allege  an  express 

'  6  How.  Pr.  298.  ^  See,  also,  Livingston  v.  FinMe.  8 

«  1  Duer,  253  [reversed,  11  N.T.  368.]     How.  Pr.  485. 

*  Ante,  pp.  220,  332,  marg.  p. 


SEC.  III.]  STATEMENT   OF  NEW   MATTER.  555 

promise,  and  tlie  defendant  specifically  deny  it,  if  tlie  plaintiff 
makes  out  a  jprima  facie  case,  may  not  the  defendant  give  evi- 
dence to  tLe  very  point  in  issue,  and  show  that  the  promise  was 
void  in  law  and  a  nullity  ? 

There  are,  doubtless,  exceptions,  resting  upon  authority,  which 
cannot  at  this  day  be  shaken,  such  as  usury,  and  perhaps  fraud, 
and  some  others  which  will  be  presently  noticed ;  but,  as  a  general 
thing,  these,  it  seems  to  me,  are  exceptions  merely,  resting  upon 
particular  reasons,  and  do  not  impair  the  general  correctness  of 
the  principle.  Take,  for  example,  the  case  of  an  action  for 
damages  for  breach  of  a  contract  to  sell  lands.  Such  contract, 
unless  in  writing,  is  void  by  the  statute  of  frauds ;  and  under  a 
general  denial  of  the  plaintiff's  complaint,  or  a  specific  denial  that 
the  defendant  made  such  a  contract,  the  plaintiff,  unless  he  show 
a  valid  written  contract,  cannot  recover.  [There  are  two  methods 
by  which  a  party  may  interpose  the  statute  of  frauds :  1st.  By 
denying  the  making  of  the  agreement  alleged  in  his  adversary's 
pleading,'  which  is  simply  a  denial  that  a  valid  legal  contract  was 
made,''  and  is  the  better  method,  as  it  throws  the  burden  of 
affirmatively  establishing  the  agreement  upon  his  adversary.  2d. 
By  admitting  the  allegations  as  to  the  alleged  contract  but  plead- 
ing the  facts  showing  it  was  void  by  the  statute.']  Suppose,  on 
the  trial,  the  plaintiff  should  ^>m?^a/ac^e  prove  the  signa- 
[*4:64]  ture  of  the  defendant  to  a  written  contract  valid  on  *  its 
face,  would  not  the  defendant,  under  his  denial,  be  per- 
mitted to  show  the  signature  a  forgery?  And  I  can  see  no 
difi'erence  between  such  a  case  and  one  where  a  defendant  has 
been  induced  to  enter  into  a  contract  through  fear  of  threats,  or 
where  undue  or  illegal  force  has  been  used,  or  where  the  claim 
arises  on  a  betting  or  gaming  contract.  In  all  these  cases  the 
contract  is  not  voidable  merely,  but  actually  void  j  there  is  no 

*  Spear  v.  Hart,  3  Rob.  420  ;  Ontario  GhampUn  v.  Parish,  11  id.  405  ; 
Bcmk  V.  Root,  3  Paige,  478 ;  Coles  v.  Harris  v.  Knickerbocker,  5  Wend,  638, 
Bowne,  10  id.  526  ;  Champlin  v.  Story's  Eq.  PL,  §  761  et  seq. ;  Haight  v. 
Parish,  \l  id.  405;  Harris  y.  Knick-  (7Mrf,  34  Barb.  186,  falls  within  the  rule 
^'/r^^oc/jer,  5  Wend.  638  ;  CHhhs  y.  Nash,  asit  was  there  pleaded  that  no  such  con- 
4  Barb.  449.  tract  as  alleged   in  the  complaint  had 

"^  Dresser  v.  Stanafield,  14  Mees.  &  been  made,  and  was  decided  upon  the 

W»lsb.  822.  ground  that  plaintiff  was  required  to 

*  Qoelet  V.  Cowdrey,  1  Duer,  132 ;  prove  the  allegations  in  the  complaint 
Cozine    v.    Graham,    3     Paige,     177 ;  and  had  failed. 


656  THE   ANSWEE.  [CH.  V. 

contract,  for  the  law  declares  that  such  a  contract  has  no  vitality, 
never  had,  and  is  a  mere  nudum  j^cLctum  /  and  it  is  no  doubt 
competent  for  the  defendant  to  show  the  fact  under  a  general 
or  specific  denial,  without  setting  up  affirmatively  the  force,  undue 
influence,  etc.,  in  his  answer.' 

Tlie  same  view  is  taken  of  the  subject  by  Mr.  Monell,  in  his 
excellent  work  on  practice.  If,  he  says,  a  suit  be  brought  upon  a 
promissory  note,  the  defendant,  under  a  general  denial,  may  show 
that  the  note  was  given  for  a  gaming  debt,  or  under  duress  and  the 
like,  and  is,  therefore,  void.  By  the  general  denial,  the  defendant, 
in  effect,  says  he  did  not  make  the  note  or  contract,  and  if  it  be 
shown  to  be  void  it  is  not  a  note  or  contract.  He  also  says  that 
the  amount  claimed  to  be  due  is  not  due,  because  there  was  no 
contract  or  obligation.  But,  it  is  recommended,  as  a  safer  practice, 
until  the  question  is  definitely  determined  by  the  courts,  to  set 
out  all  such  facts  as  new  matter  in  the  answer,  and  not  rely,  while 
it  is  an  undecided  question,  upon  being  permitted  to  give 
[*465]  them  in  evidence  under  the  general  *  issue."  The  prin- 
ciple is  well  illustrated  by  Mr.  Monell,  by  supposing  the 
case  of  an  action  for  goods  sold  and  delivered ;  a  general  denial 
would  put  in  issue,  among  other  things,  the  sale,  etc.,  to  him,  and 
could  he  not  upon  such  an  issue  show  by  proof  aliunde,  that  the 
sale  was  not  to  him,,  but  to  another  person  ?  Clearly  he  could. 
Wherein,  then,  lies  the  difference?  Can  he  not  also  show  that 
the  note  was  given  for  a  gaming  or  betting  debt,  or  was  obtained 
by  duress,  either  of  which  renders  the  note  absolutely  void,  and 
which  could  always  be  given  in  evidence  under  the  general  issue, 
and  need  not  be  specially  pleaded.' 

1  do  not  think,  however,  that  the  case  of  infancy  can  properly 
be  included  in  the  above,  but  that  a  distinction  is  to  be  taken 
between  such  contracts  as  are  absolutely  void,  or  no  contracts  at 
all,  and  those  which  are  voidaUe  merely;  and  that,  as  to  the 
latter,  the  fiicts  which  constitute  the  case  upon  which  the  defend- 
ant seeks  to  avoid  a  contract  which  the  law  would  otherwise  pro- 

'  [This  portion   of   the  author's  re-  pleaded   specially.     The   question  of 

marlvs  are  not  approved  by  the  editor  forgery   or   no    forgery  goes  to    this, 

of  the  present  edition.     In  his  opinion  The   distinction   seems  to   have  been 

duress  and  every  other  defense  wliich  lost  sight  of  by  Mr.  Van  Santvoord]. 

does   not  go  to   execution  in   fact  or  *  1  Monell's  Pr.,  2d  ed.,  pp.  560,564. 

.-ather  the  fact  of  execution  should  b«  »  1  Monell's  Pr.  560. 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  :557 

noTince  valid,  should  be  pleaded.  Thus,  the  contract  of  an  infant 
or  lunatic  is  not  absolutely  void,  but  voidable  merely.  He  is 
bound  to  pay  for  necessaries  for  himself  and  family.'  An  infant 
may  also  bind  himself  by  a  renewal  of  his  promise,  on  coming  of 
age.'  It  will,  in  all  cases,  therefore,  be  proper,  and  I  think  neces- 
sary, if  the  defendant  mean  to  rely  upon  infancy,  lunacy, 
[*4:66]  or  any  *other  fact  going  to  show  that  the  contract  is  void- 
able, to  allege  it  in  his  answer  as  "  new  maiter,"  by  way 
of  apprising  the  plaintiff  of  the  exact  nature  of  his  defense. 

Upon  general  principles,  too,  I  see  nothing  in  the  case  of  a 
contract  void  for  fraud  to  make  it  an  exception  to  the  rule.  Fraud, 
in  the  execution  of  an  agreement,  whether  by  parol  or  under  seal, 
renders  it  void,  as  where  one  agreement  is  fraudulently  substituted 
for  another,  or  fraudulently  misread.  So,  also,  all  contracts  made 
with  a  view  to  settle  or  compound  criminal  prosecutions,  and 
generally  all  contracts  the  consideration  of  which  is  illegal.  The 
facts  constituting  the  fraud,  or  the  illegality  of  the  consideration, 
or  other  matters  going  to  show  the  contract  or  alleged  cause  of 
action  void  in  its  inception,  may,  in  all  cases,  be  properly  alleged 
as  new  matter  in  the  answer.  But,  it  is  thought,  too,  that  such 
facts,  under  a  general  denial,  maybe  given  in  evidence  to  disprove 
or  controvert  the  material  allegation  in  the'  plaintiff's  complaint, 
that  such  a  contract  was  made,  or  was  made  upon  a  sufficient 
consideration,  etc.,  etc. 

The  case  of  fraud,  however,  has  been  thought  an  exception  to 
the  rule,  and  it  may  well  be  so  on  the  application  of  the  principle 
recognized  in  equity.  Courts  of  equity  would  not  relieve  against 
a  contract  on  the  ground  of  fraud,  unless  it  were  distinctly 
[*467]  alleged  in  pleading,  for  otherwise  it  was  not  deemed  '-^  in 
the  issue."  And  within  this  principle,  perhaps,  was  the 
decision  in  MoMurray  v.  Thomas  ^  under  the  Code,  in  which  it 
was  said  that  in  an  answer  alleging  fraud  generally,  without 
setting  out  the  facts  showing  in  what  the  fraud  consists,  or  tliat 
the  contract  was  without  consideration  and  void,  was  bad.  This 
case,  however,  does  not  really  conflict  with  tlie  principle  above 
laid  down.     The  answer  of  fraud  generally,  without  alleging  the 

»  2  Kent's  Com.,  3d  ed.,  237.  »  5  ITow.  Pr.  14. 

2  Gouvernearv.  Elmendorf,  5  Johns. 
Ch.  79. 


558  THE   AIS^SWEE.  [CH.  V. 

facts  going  to  establisli  it,  was  properly  held  defective  as  the  plead- 
ing of  a  mere  conclusion  of  law.  The  answer,  also,  was  held  bad 
for  another  reason ;  namely,  because  it  was  hypotJtetical.  The 
complaint,  which  was  on  a  promissory  note,  contained  all  the 
necessary  allegations  to  establish  a  cause  of  action.  The  answer, 
first,  merely  denied  being  indebted  to  the  plaintiffs,  which  was 
held  bad  as  a  conclusion  of  law ;  and,  second,  alleged  generally 
that  if  the  plaintiffs  were  the  holders  and  owners  of  the  note,  the 
same  was  obtained  ftom  the  defendant  by /r«t«^,  and  was  without 
consideration  and  void,  which  was  bad  as  a  hypothetical  answer. 
There  was  no  general  denial  of  the  facts  stated  in  the  complaint, 
and  no  specific  denial  that  the  note  was  made  and  executed  by  the 
defendant  upon  a  valid  consideration.  The  question,  therefore, 
was  not  raised  whether,  if  the  defendant  had,  by  his  answer, 
directly  denied  that  he  made  such  a  contract  as  was  alleged 
[*468]  in  the  ^complaint,  e\adence  to  show  the  pretended  contract 
absolutely  void,  for  fraud,  might  not  be  admissible ;  nor  am  I 
aware  that  any  such  case  has  been  decided  since  the  Code.  The  case 
of  Catlin  V.  Gunter^  cited  supra,  arose  upon  a  question  of  usury. 

Such  defenses  as  these,  however,  if  admissible  at  all  under  a 
denial,  without  being  pleaded,  should,  perhaps,  be  strictly  held 
so  admissible  only  as  between  the  original  parties  to  the  transac- 
tion. One  of  the  main  objects  of  the  answer  is  to  apprise  the 
plaintiff  of  the  nature  of  the  defense ;  and  justice  seems  to  require, 
in  all  cases,  that  the  plaintiff  should  not  be  allowed  to  be  surprised 
on  the  trial  by  a  course  of  defense  which  he  could  not  reasonably 
have  anticipated.  Where  a  contract  or  cause  of  action,  therefore, 
valid  on  its  face,  has  been  assigned,  the  defendant  should  not  be 
permitted  to  defeat  the  plaintiff's  claim,  on  the  ground  that  the 
contract  was  originally  void  for  fraud,  illegality,  etc.,  without 
apprising  him  specifically  of  the  facts  on  which  he  relies  to  establish 
such  a  defense. 

The  case  of  a  note  or  contract,  void  by  the  statute  for  usury,  ia 
imdoubtedly  an  exception.  The  decision  in  Catlin  v.  Gunter* 
is  explicit  to  the  point,  that  such  a  defense  cannot  be  introduced 
under  a  mere  denial.     This,  however,  was  but  following  an  old 

'  ]  Duer,  253 ;  11  Leg.  Ohs.  210  [re-  « 1  Duer,2o3  [reversed,  11  X.  Y.  368] 
jrersed,  11  N.  Y.  368]. 


SEC.  III.]  STATEME^S'T  OF   NEW   MATTEE.  559 

and  well-established  rule,  which  had  also  been  more  than 
[*469]  once  applied  under  the  Code.  The  *subject  is  full  j  dis- 
cussed in  Fay  v.  Grimsteed^  in  which  it  is  held  that  the 
defendant  cannot  give  evidence  of  usury  on  the  trial,  unless  his 
answer  sets  up  the  terms  of  the  usurious  contract,  and  the  qxian- 
tum  of  usurious  interest ;  such,  also,  was  the  rule  under  the  for- 
mer practice,  in  equity.'  And  in  actions  at  law  the  defense  might 
be  given  under  a  notice  with  the  general  issue,  but  the  notice  must 
contain  a  precise  statement  of  the  usurious  contract,  and  the  amount 
of  usurious  interest  received,  and  generally  such  matters  as,  if 
pleaded,  would  constitute  a  good  plea  of  usary.^  The  same  rule 
was  applied  under  the  Code  in  Gould  v.  Homer*  at  the  New  York 
general  term,  and  the  reason  is  given  that  such  strictness  should 
be  required  in  this,  "  inasmuch  as  the  effect  of  such  pleading,  if 
sustained,  is  to  set  aside  the  entire  contract,  and  to  deprive  the 
party  lending  the  money  of  even  the  money  lent,"  ^ 

In  respect  to  those  defenses  which  admit  that  there  was  a  suffi- 
cient contract,  or  a  cause  of  action,  but  avoid  it  by  subsequent 
matter,  or  show  that  the  cause  of  action  has  been  discharged,  they 
should  always,  in  order  to  entitle  the  defendant  to  give  evidence 
in  his  defense,  be  specially  alleged  in  his  answer.  Thus,  m.  an 
action  arising  on  contract,  all  mattel's  which  admit  that  a 
[*4Y0]  sufficient  contract  was  *  made,  or  that  there  was  once  a 
cause  of  action,  but  avoid  it  by  subsequent  matter,  as 
release,  parol  discharge,  alteration  in  terms  of  contract  by  consent, 
non-performance  by  plaintiff  of  a  condition  precedent,  contract 
become  illegal  or  impossible  to  perform,  insolvent  discharge  of 
defendant,  accord  and  satisfaction,  tender,  arbitrament,  former 
recovery  or  trial  and  judgment  on  the  same  demand,  higher  secur- 
ity given,  statute  of  limitations,  set-off  or  counter-claim  of  any 
description,  payment,  performance.  Also,  in  an  action  for  a 
wrong  or  injury,  all  matters  which  admit  the  commission,  but 
justify  or  excuse  the  act,  such  as,  in  trespass,  distress  for  doing 
damage,  license,  right  of  way,  inevitable  necessity  ;  also,  all  matters 
showing  a  discliarge  of  the  action,  such  as  accord  and  satisfaction, 

'  10  Barb.  S.  C.  331.  Oba.  344,  and  Watsonx.  Bailey, 2  Duer, 

*  Vrooms  v.  Titmas,  4  Paicre's  Cb.  526.     509. 

'  Cloyes  V.  Thayer,  3  Hill,  5G4.  ^  See  tbis   subject   fully   discusFcd 

*  12  Barb.  S.  C."  602 ;  1  Code  R.  N.  S.     Moak's  note  to  Clarke's   C'l.   373,   ed' 
856 ;  See,  also,  (^uick  v.  Grant,  10  Leg.     1869,  and  3  Keyes,  166 


660  THE   AXSWER.  [CH.  V. 

former  recovery,  tender  of  amends  for  casual  trespass,  release, 
statute  of  limitations,  etc.,  etc.  ;  *  also,  in  actions  either  on  con- 
tract or  for  wrong,  that  the  plaintiff  has  not  legal  capacity  to  sue, 
that  the  court  has  no  jurisdiction,"  that  there  is  another  action 
pending  between  the  same  parties  for  the.  same  cause,  and  that 
there  is  a  defect  of  parties,  plaintiff  or  defendant,  whenever  any 
of  these  facts  do  not  appear  on  the  face  of  the  complaint.^ 

It  is  to  be  particularly  observed  that,  although  under 
[*4T1]  the  old  system  many  of  the  above  defenses  *  might  be 

given  in  evidence  under  the  general  issue,  as  could  also, 
in  an  action  on  simple  contract,  the  defenses  of  infancy,  lunacy, 
coverture,  insufficiency  of  consideration,  duress,  the  statute  of 
frauds,  etc.,  yet,  as  a  general  rule,  the  defendant  had  his  election 
to  plead  them  specially  or  give  them  in  evidence  under  the 
general  issue ;  and  although  a  defendant  should  plead  specially 
that  which  amounted  to  the  general  issue,  the  defect  was  a  mere 
matter  of  form,  and  could  be  taken  advantage  of  only  by  special 
demurrer.*  Therefore,  there  can  be  no  objection  under  the  Code 
to  set  forth  specially  each  of  these  defenses,  even  though  as  to 
some  of  them  there  might  not  be  any  absolute  necessity  of  doing 
so.  And,  it  is  always  advisable  to  do  so  rather  than  encounter 
the  risk  of  bein»  obliged  to  amend  on  the  trial,  in  order  to  intro- 
duce  the  proper  evidence.  Thus,  in  an  action  where  the  com- 
plaint alleged  an  express  promise,  supported  by  the  consideration 
of  a  prior  moral  obligation,  I  do  not  doubt  but,  under  a  specific 
denial  of  the  promise,  it  would  be  competent,  in  an  action  between 
the  original  parties  to  the  contract,  for  a  defendant  to  show  that 
the  promise  was  extorted  by  threats  of  bodily  harm ;  yet,  at  the 
same  time,  it  might  be  proper,  as  well  as  prudent,  to  allege 

specially  the  fact  as  new  matter ;  and  so  in  other  cases. 
[*472]       *A  settlement  and  satisfaction  after  suit  brought  is  also 

a  defense  and  may  be  set  up  in  the  answer  under  the 
Code  ;^  [but  judgment  for  part  and  payment  thereof  is  no  defense 
if  defendant  agreed  to  pay  the  balance.'] 

I  have  already  intimated  that  the  intention  of  the  Code  seems 

»  Cow.  Treat.,  pp.  690-698.  '  Code,  g§  144,  147. 

»  But   the  question   of   jurisdiction  *  2  Cow.  Treat.  700,  Grab.  Pr.  237. 

may,  at  any  time,  be  raised,  and  is  not  '  WUlia  v.  Chipp,  9  How.  Pr.  568. 

waived  by  a  neglect  to  set  it  up  in  the  •  MiUt  v.  Garrison,  3  Keyea,  40. 
answer. 


SEC.  III.]  STATEMENT   OF   ^'EW   MATTER,  561 

to  be  to  follow  the  equity  rule  as  to  setting  forth  defenses,  namelj, 
that  the  defendant  is  bound  to  apprise  the  complainant  of  the 
nature  of  the  case  he  intends  to  avail  himself  of  bj  way  of  defense. 
The  rule  in  equity  was,  that  the  complainant  had  a  right  to  be 
informed  by  the  answer,  not  only  of  the  facts  to  be  proved,  but 
of  the  use  intended  to  be  made  of  them,  and  of  the  nature  of  the 
conclusions  intended  to  be  drawn.*  But  this  did  not  extend  so 
far  as  to  allow  the  defendant  to  state  arguments  by  way  of 
answer,  or  mere  conclusions  of  law,  but  he  must  confine  himself 
to  facts."  And  the  defendant  could  not  avail  himself  of  any 
matter  of  defense  not  stated  in  his  answer,  even  though  it  should 
appear  in  his  evidence.' 

These  rules  seem  to  be  fully  applicable  to  the  new  system. 
Evidence  can  be  introduced  only  secundum  allegata*  as  well  in 
respect  to  the  defense,  as  to  the  cause  of  action.  The  cases 
adjudicated  since  the  Code  fully  sustain  the  proposition,  especially 
those  in  regard  to  the  necessity  of  pleading  a  partial  defense. 

Other  decisions  hold  the  same  language. 
p4:T3]  ^  Thus,  in  Diefendoi'ff  v.  Gage^  it  was  held  that  a  de- 
fendant could  not  give  evidence  of  a  matter  of  defense 
not  set  up  in  his  answer.  Under  an  allegation  that  the  property 
was  '•  very  poor  and  of  very  little  value,''  the  defendant,  in  an 
action  to  recover  a  stipulated  price,  was  not  suifered  to  prove  that 
it  was  worth  nothing  at  aH,  it  being  held,  in  order  to  admit  the 
defense  of  a  fraudulent  representation  of  the  article,  or  a  breach 
of  warranty,  under  the  Code,  in  an  action  for  the  price,  such  de- 
fense must  be  set  up  with  proper  averments  in  the  answer. 

But  this  does  not  extend  to  an  action  of  trespass,  or  for  damages 

for  injury  to  property,  as  in  the  case  of  Duiilap  v.  Snyder*  in 

whicli  it  was  ruled  that  in  an  action  for  damao^es  for  killino-  a  dosr, 

'  1  Barb.  Ch.  Pr.  137.  marg.  p.;  but  see  Durand  v.  Hanker- 
»  Story's  Eq.  PL,  §  852,  Cooper's  Eq.  ,  son,  39  X.  T.  2S7;  Doyle  v.  Mubren,  7 

PI.  313.  Abb.  N.  S.  263  ;    Mejisch  v.  Jlen^ch.  3 

'  1  Barb.  Cb.  Pr.  137.  Lans.  235,  pointing  out  tbe  distinction 

*  [Wrifjht  V.  Delajiehi,  25  X.  Y.  266 ;  between  a  variance  and  a  case  where 

Borne    Exchange    Bank  v.   Eames,   1  there  is  no  allegation  upon  the  sub- 

Keves,  588;  Commercml  Bank  v.  Ten  ject;  and   Wood  v.  Brown,  34  X.  Y. 

Eyrk.  50  Barb.  9  ;  Bradley  v.  Aldrirh,  337,  where   the  pleading-  was   inarti- 

4i  X.Y.  504;  57(0/-^  V.  5arrv,  oS  Barb,  ficiallv    drawn,    and    see    post,   475, 

1 77  ;  Paige  v.  WiUett,  38  X.Y.  38 :  Tell  mnrg.  p.] 
V.  Beyer,  38  id.  161 ;  Lewis  v.  Mott,  36        *  7  Barb.  S.  C.  18. 
id.  3t»5  ;  Perkins  v.  Giles,  53  Barb.  342 ;        «  17  Barb.  S.  C.  561.     See  ScTiermer- 

W/uder  v.  Allen.  49  id.  460,  post,  745,  Tiorn  v.  Van  Allen,  18  Barb.  S.  C.  39. 
71 


562  THE  ANSWER.  [CH.  V. 

proof  of  tlie  wortblessness  of  the  animal  is  proper  in  mitigation 
of  damages,  although  that  defense  is  not  set  up  in  the  answer. 
Nor  is  it  enough  for  a  defendant  to  spread  out  certain  portions  of 
what  may  be  the  evidence  in  the  cause  and  rely  upon  that  as  an 
answer.'  In  an  action  to  recover  land,  if  the  defendant  wishes  to 
put  the  title  in  issue,  he  must  deny  the  allegation  that  the  plain- 
tijffs  have  the  lawful  title,  or  are  seized,  etc.,  in  express  words ;  or, 
he  may  set  out  the  existence  of  the  facts  which,  if  true,  would 
show  that  the  plaintiffs  had  no  title,  but,  by  omitting 
[*474]  to  put  the  title  in  issue  by  a  general  or  specific  denial,  *  he 
takes  upon  himself  the  burden  of  stating  facts  in  his 
answer  sufficient  to  show  that  the  plaintifi'  has  no  title." 

An  afiirmative  independent  fact,  in  no  wise  connected  with  the 
defense  set  up,  cannot  be  given  in  evidence  unless  pleaded.  Thus, 
in  an  action  on  a  covenant  against  the  assignee  of  a  lessee  for 
rent,  the  defendant,  under  a  denial  of  the  execution  of  the  lease 
and  of  the  assignment  to  him,  can  set  up  no  other  defense,  and 
will  not  on  the  trial  be  permitted  to  prove  that,  before  the  rent 
became  due,  he  assigned  all  his  interest  to  a  third  person,  ^vho 
entered  into  possession  and  was  in  possession  when  the  rent 
became  due.' 

Similar  principles  are  recognized  and  applied  in  other  cases 
under  the  Code.*  In  regard  to  the  complaint  the  same  rule  pre- 
vails. The  judgment  must  be  secundum  allegata,  as  well  as 
secundum  probata.  Facts  proved,  but  not  pleaded,  are  not  avail- 
able to  the  party.  And  a  fact  not  alleged,  though  proved,  cannot 
form  the  basis  of  a  decree.*  A  similar  rule  prevailed  in  equity,* 
and  also  in  the  admiralty  or  civil  law  practice.''  But  in  regard 
to  the  answer,  it  seems,  the  objection  is  only  to  be  raised 
[*475]  on  the  *  trial  on  the  question  of  receiving  or  excluding 
the  evidence. 

[Since  the  Code,  any  new  matter  constituting  a  defense  or  par- 
tial defense  must  be  pleaded.*     Adjudications  to  this  effect  have 

'  Pattison  v.  Taplor,  8  Barb.  S.  C.  250.  «  2  Seld.  179 ;  Bailey  v.  Ri/der,  Court 

*  Corwin  v.  Corwin,  9  Barb.  S.  C.  219.  of  Appeals,  Dec,  1852  ;  Bristol  v.  Reus- 

*  Kdlletas  V.  Mayhee  1  Code  R.  N.  S.  selaer  &  Saratoga  Railroad  Co.,  9  Barb. 
363.  N.  Y.  Gen.  T.  158. 

*  Gatlin  v.  Gunter,  1  Duer,  253 ;  Mc-  «  2  Bibb's  Rep.  14,  5  Munf.  314. 
Murray  v.    Thomas,  5   How.  Pr.  14 ;  ""  Cranch,  389. 

Catlinx.  Hansen,!  t>neT,dOQ;  Coan  y.        ^  Travis  v.  Barger,  24    Barb.   614; 
Osgood,  15  Barb.  583.  Beaty  v.  Swartwout,  32  id.  293.    A  con- 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  563 

been  made  upon  the  following-  defeiibea :  In  an  action  against  a 
slierili  for  an  escape,  that  the  judgment  debtor  would  have  returned 
upon  the  limits  before  suit  but  for  the  fraudulent  action  of  tha 
plaintiff;'  or  that  the  judgment  debtor  was  recaptured ; '  a  dis- 
charge in  bankruptcy  ;  °  infancy  ; '  7U(,l  tiel  corporation ;  *  that  a 
statute  relied  upon  by  the  plaintiff  was  not  constitutionally 
passed  ;  *  license ; '  justification  as  an  officer  under  process/  and 
in  many  cases  he  must  even  plead  the  judgment  as  well  as  his 
process.' 

A  defect  of  parties  when  such  defect  does  not  appear  on  the 
face  of  the  complaint ;  ®  facts  which  render  an  award  invalid  ; '"  the 
existence  of  a  custom  and  that  the  case  is  within  the  custom  ; ''  a 
partial  faihire  of  consideration  on  account  of  the  quality  of  goods 
sold  and  delivered  should  be  pleaded  by  way  of  recoupment ;  '* 
that  the  defendant  was  of  imbecile  mind  when  he  made  the 
contract  in  suit,"  or  was  intoxicated ;  that  the  defendant  w'as 
prevented  from  performing  a  contract  by  the  act  of  God,  as  by 
a  freshet ;  "  that  a  contract  is  illegal  or  contrary  to  public  policy," 
unless  that  fact  should  appear  on  the  face  of  the  complaint  when 
the  remedy  is  by  demurrer ;  that  the  defendant  was  sued  by  a 
wrong  name ;  '*  inability  of  a  party  agreeing  to  lease  property  to 
give  a  good  title ;  "  extension  of  time  to  perform  a  contract ;  '*  in 
which  case  if  no  time  be  fixed  a  reasonable  time  is  implied  and 
the  party  insisting  upon  performance  must  also  plead  tender  ;'* 
laches  in  demanding  the  execution  of  a  trust ; '"  that  a  patent  w^as 

siderable  part  of  the  matter  herein,  on  How.  467 ;  again  reported  by  mistake, 

the  present  subject,  was  written  by  the  54  Barb.  411. 

editor  of  the  present  edition  in  a  note  ^  Dodge  v.  N.  T.,  etc.  37  How.  534  6 

to  Clarlie's  Ch.  506,  ed.  1869.     He  is  in-  Abb.  N.  S.  451. 

debted  to  the  courtesy  of  Mr.  W.  C.  '°  Moorewood  v.  Jeioett,  2  Rob.  496 ; 

Little  for  permission  to  use  the  same.  Perkins  v.  Giles,  53  Barb.  342 ;  Ryder 

^  Richtmyer  v.  Remsen,  38  N.  Y.  206.  v.  Juiii/,  2  Rob.  57. 

2  Cornell  v.  Bakin,  38  N.  Y.  253.  "  1  Broom's  Com.  67-8. 

3  Treadwell  v.  Bruder,  3  E.  D.  Smith,  i^  McGormick  v.  Sarson,  38  How.  190 ; 
597.  Cloxigh  v.  Murray,  19  Abb.  97. 

*  Fulton  Fire  Ins.   Co.  v.   Baldicin,  '^  Harrison  <r.  Richardson,  1  Moody 

37  N.  Y.  648  ;  Phcenic  Bank  v.  Donnell,  &  Rob.  504. 

40  id.  410 ;  Lighte  v.  Ecerett  Fire  Ins.  '*  I^ew  Haven,  etc.,   v.    Quintard,  6 

Co.,  5  Bosw.  716.  Abb.  N.  S.  128,  1  Sweeny,  89. 

^Darlington  v.  Mayor,  etc.,  2  Rob.  ^^  Cummins  v.  BarkalowAi^ejes, 51i. 

274.  16  Traver    v.   EtgJith  Av.   R.  R.,    3 

«  HaigM    v.  Badgley,  15  Barb.  499 ;  Keyes,  497,  6  Abb.  N.  S.  46. 

Van  Buskirk  v.  Irving,  7   Cow.  35;  ^'^' Ryder  ^.  Jenny,  2  IXob.  5Q 

Beaty  v.  Swartwout,  32  Barb.  293.  "*  Newton  v.  Wales,  3  Ro'j.  453. 

''  Beaty  v.  Swartwout,  32  Barb.  293.  '^  Hunter   v.    Town  of  Marlboro',  2 

'  Dennis  v.  tinell,  50   Barb.   95,  34  Woodb.  &  Minot,  168. 


664  THE   ANSWER.  [CH.  V. 

invalid ;  *  fraud  in  inducing  the  defendant  to  enter  into  the  con- 
tract sued  upon ; '  that  property  illegally  levied  on  by  defendant 
was  subsequently  legally  levied  on  by  a  third  person  by  virtue 
of  an  attachment  against  plaintiff;"  that  defendant  purchased 
without  notice  and  is  a  lona  fide  purchaser,  or  purchased  from  a 
hona  fide  purchaser ; '  and  he  must  aver  want  of  notice  at  the 
time  of  paying  his  money  as  well  as  at  the  time  of  purchasing ;  * 
even  securing  the  money  is  not  sufficient/ 

Adverse  enjoyment  of  an  easement,  as  of  a  right  for  the  dis- 
charge of  an  eavestrough,*  payment,'  but  if  the  plaintiff  in  his 
complaint,  expressly  or  by  deduction,  allege  payment  of  a  certain 
sum  and  claim  a  balance,  the  defendant  may  show  payment  of  the 
sum  admitted ;  *  a  counterclaim ;  *  that  plaintiff  knew  of,  con- 
sented to,  and  connived  at,  the  seduction  of  his  daughter ; '"  so,  in 
an  action  for  seducing  plaintiff's  wife  ; "  that  plaintiff  prostituted 
herself  to  another  after  defendant  promised  to  marry  her ;  "*  that  a 
contract  has  been  rescinded  on  the  ground  of  fraud  ; '°  disaffirm- 
ance on  the  ground  of  infancy  ;  '*  that  an  award  has  been  made 
between  the  parties ; "  a  former  suit  in  bar ;  *'  although  if  proved 
without  objection,  a  party  may  avail  himself  of  it,"  as  he  may 
any  other  fact  proven  without  objection  ;  "  under  certain  circum- 

'  'SVilder    v.   Adams,  2    Woodb.    &       '-  Boynton  v.  Kellogg,  3  Mass.  189 ; 

Mi  not,  329.  Palmer    v.   Andreics,  7    Wend.   143  ; 

2  WMe  V.  Eaviland,  42  How.  399  ;  Knijfen  v.  McConndl,  30  N.  Y.  285. 
WeMe  V.  Butler,  12  Abb.  N.  S.  139.  '»  Devendorf  v.  Beardslcy,  23  B^rb 

^  Galatian    v.     Enoin,    Hopk.    48,  657 ;    Dresser    v.    Barton,  2   Alb.   L. 

aflirmed,  8  Cow.  361,  Kerr  on  Frauds  J.  13;  but  see  White  v.Dodds,  28  How. 

and  Mistakes,  312-316,   1st  Am.   ed.;  197. 

Bennett  v.  Walker,  West's  Ch.  130;  '■*  Voorhiesv.  Voorhies,  24  Barb.  150. 
Brandling  v.  Ord,  id.  512,  and  cases       '°  Brazil  v.  Isham,  12  N.  Y.  9  ;  Lohdell 

cited  in  note  ;  Jackson  v.  Rowe,  2  Sim.  v.  Stoicell,  37  How.  88. 
&  Stu.  472,  and  Dunlop's  note,  p.  475,       '^  Hendricks  v.  Decker,  35  Barb.  298  ; 

Banks's  ed. ;  see  McQueen  v.  Farquhar,  Wood  v.  Jackson,  8  Wend.  11 ;   White 

11  Ves.  467,  Sumner's  note.  v.  Coatsworth,  6  N.  Y.  137. 

*  Story  V.  Winsur,  2  Atkins,  630  ;  "  Sclilussel  v.  Willet,  34  Barb.  615 ; 
Jewett  V.  Palmer,  7  Johns.  Ch.  68;  Ashley  v.  Marshall,  29  N.  Y.  494; 
High  V.  Batte,  10  Yerg.  385.  Draper  v.  Stouvenel,  38  id.  219. 

'  Jeiaett  v.  Palmer,  7  Johns.  Cli.  68.         "*  Thompson  v.  Burnett,  2  Keyes,  503  ; 

*  NeaJe  v.  Seeley,  47  Barb.  314.  Roschrooks  v.  Dinsmore,  36  How.  138,  1 
'  McKyring   v.   Ball,  16   N.  Y.  297  ;     Trans.  App.  265  ;  Myer  v.  FIgel,  7  Rob. 

MorreU  v.  Irmng  Fire  Inn.  Co.,  33  id.  122 ;  Flora  v.  (Jarheau,  38  N.  Y.  Ill ; 

443.  Cythe  v.  La  Fontain,  51   Barb.   186; 

«  Quia  V.  Lloyd,  41  N.  Y.  349,  352.  I<:ern  v.  ToiosUy,  51    id.  386  ;   Whitney 

*  Burknam  v.  Brett,  13  Abb.  123.  v.  Whitney,  49  id.  319;  Hutchinson  v. 
'"  Travis  v.   Burqer,  24   Barb.   614 ;  Market  Bank,  48  id.  303  ;  Commercial 

Kahn  v.  Freytag,  2  Rob.  678.  Bank  v.  Shuart,  46  id.   371  ;  Fork  v. 

"  Bunnell  V.  Greathead,Vs)  Barb.  107.     Roberts,!  Wnh.  17;  but  see   BrazU  v, 

Bee  Taylor  v.  Jennings,  7  Rob.  581.  Isham,  12  N.Y.  9,  andante,  472, marg.p 


SEC.  111.]  STATEME]SI"T   OF   NEW   MATTER,  565 

etauces  a  judgment  recovered  after  issue  joined  may  be  admissible 
to  prove  a  fact,'  even  though  the  judgment  record  be  not  made  up 
until  just  in  time  to  give  it  in  evidence.^  Under  a  denial  of  a 
judgment  it  has  been  held  that  the  defendant  might  show  it  was 
afterward  vacated ; '  but  we  do  not  think  correctly.  If  reversed 
or  vacated  after  answer  inteiyosed  that  fact  should  be  set  up  by 
supplemental  answer,*  or,  perhaps,  by  an  original  answer,  if  the 
time  to  answer  of  course  has  not  expired  ;^  one  sued  in  trover  for 
property  may  set  up  a  chattel  mortgage  or  judgment  and  levy 
thereunder,  purchased  after  conversion,  but  before  suit  brought.* 
In  an  action  against  a  sheriff  for  escape,  the  defendant,  if  he 
desire  to  prove  the  fact  on  the  trial,  must  plead  that  the  de- 
fendant in  the  execution  was  worthless  and  irresponsible.''  An 
allegation  that  defendants  sold  "  as  manufacturers,"  is  not  a 
sutficient  averment  that  they  '"'•were  inanufacturers." *  The  fol- 
lowing need  not  be  pleaded :  That  plaintifi'  and  defendant  were 
joint  tenants  in  the  ownership  of  the  property  alleged  to  have  been 
converted,  if  a  conversion  be  denied  ;*  but  if  a  third  person  wish 
to  show  a  right  under  a  joint  owner,  if  he  admit  ownership  of 
the  property  in  the  plaintiff,  he  must  plead  the  facts  showing  such 
right ;'"  that  defendant  is  in  the  actual  possession  of  the  land  for 
trespass  upon  which  he  is  prosecuted;"  evidence  of  the  quantity 
of  grass  cut,  where  plaintiff  had  paid  for  standing  grass,  and  cut 
before  defendant  repudiated  the  contract  because  void  by  the 
statute  of  frauds  ;  such  evidence  is  admissible  in  reduction  of 
damages  ;'^  but  an  alteration  of  a  bill  need  not  be  pleaded,  il  de- 
fendant deny  the  execution  of  the  bill  referred  to  in  the  com- 

'  Rinchey  v.  Striker,  26    How.   83 ;    Short  v.  Hooker,  40  How.  420  ;  Ormsbee 
Woody.  Jackson,  QWendi.ll.  \.  Brown,    50   Barb.    436;    Brown  v. 

~  Van  Orman  v.  Phelps,  9  Barb.  500.     Richardson,  7  Rob.  57. 


3  Kinsey  v.  Ford,  38  Barb.  195 
Ward  V.  Syme,  8  N.  Y.  Leg.  Obs.  95 
Brown    v.    Richardson,    7    Rob.    57 


«  Smith  V.  Reeves,  33  How.  183. 
Loosey  v.  Orser,  4  Bosw.  391. 
8  Smith    V.  Mawhood,  14    Mees. 


Ormsbee  v.  Brown,  50  Barb.  436.    See  Welsb.  452. 

post,  012,  marg.  v.  ^  Higrjins  v.  Thomas,  8  Q.  B.  (55  Eng. 

■»  Williams  v.  Hernon,  16  Abb.  173 ;  C.  L.)'  908.     The  case  of   Stanclif  v. 

Short  V.  Hooker,  AO  How.  420;    Hen-  Hardwick,2  Cromp. ,  Mees.  &  Rose.  I,i3 

dricks  v.  Beaker,  35  Barb.  298 ;  Broion  not   good   law.      See   note   at   end   of 

V.  Richardson,  7  Rob.  57 ;   Browne  v.  Johnson's  Am.  ed. ,  and  Whitmore  v. 

Higden,    West's    Ch.    21 ;    Clarke    v.  Greene,  13  Mees.  &  Welsb.  107. 

Clarke,  7  Rob.  276  ;  but  see  McCvUough  '«  TeU  v.  Beyer,  38  N.  Y.  161. 

V.  Colby,  4  Bosw.  603,  5  id.  477  ;  Watson  "  Shnll  v.  Orem,  49  Barb.  312. 

V.  7'hibou,  17  Abb.  184.  12  Watkins  v.  Bush,  2  Lans,  234, 

«  Carpenter    v.  Bell,   19   Abb.    258 ; 


566  THE   AK'SWER.  [CH.  V. 

plaiut ; '  althougli  it  is  safer  to  allege  the  alteration."  Under  a 
denial  that  the  plaintiff  is  the  owner  of  the  horse  in  suit,  defend- 
ant may  show  plamtitf 's  intestate  gave  it  to  him  ; '  or,  under  an 
allegation  of  a  wrongful  act,  may  show  that  it  was  negligent.* 
Under  an  averment  of  tender,  the  defendant  may  show  that  plain- 
tiff waived  a  tender ;  ^  but  evidence  of  waiver  of  protest  is  not 
admissible  under  an  averment  of  protest/  But,  where  a  bill 
drawn  on  Leghorn  was  not  presented  in  due  time,  owing  to  the 
political  state  of  the  country  at  that  time,  which  rendered  it  im- 
possible to  present  it,  held,  that,  it  being  afterward  presented  for 
payment,  with  due  diligence,  and  refused  for  want  of  presentation 
at  the  time  when  it  was  due,  the  holder  might  recover  against  the 
antecedent  parties,  and  that  evidence  of  this  impossibility  of  pre- 
senting at  the  time  of  the  maturity  of  the  bill  might  be  given 
under  the  ordinary  averment  that  it  was  duly  presented,^  as  this 
allegation  means  that  it  was  properly  presented  under  all  the  cir- 
cumstances of  the  case. 

So  an  averment  that  an  agent  acted  by  due  authority  is  sustained 
by  proof  of  subsequent  ratification.*  But  evidence  of  an  excuse 
for  non-performance  is  not  admissible  under  an  averment  of  per- 
formance.* So  evidence  of  a  waiver  of  performance  is  not  admis- 
sible under  an  averment  of  performance,"  but  this  rule  is  of  very 
little  consequence,  as  plaintilf  may  be  allowed  to  amend  his  com- 
plaijit  and  then  give  the  evidence."  Under  the  plea  of  non  est 
factum^  in  covenant,  neither  a  mutual  abandonment  of  the  con- 
tract by  the  parties,  nor  the  non-performance  by  the  plaintiff"  of 
conditions  precedent,  can  be  given  in  evidence."  "Where  the  de- 
fendant has  put  it  out  of  his  power  to  perform,  or  has  given  notice 
that  he  will  not  do  so,  the  plaintiff  should  allege  the  facts  con- 
stituting his  excuse  for  not  being  ready,  or  for  not  offering  to  per- 
form."    An  answer  setting  up  matter  in  mitigation  of  damages, 

"  Oock  V.  Coxwell,  2  Cromp.,  Mees.  &  ■>  Patience    v.    Townley,   2    Smitli'a 

Rose.  291.  (Eng.)  Eep.  223. 

*  It  has,  since  the  first  impression,  s  jj^^y^  y  Thompson's  Ex'r,  19  N.  Y. 
been  held  necessary  to  plead  an  alter-  208. 

ation  {Boomer  v.  Kaon,  6  N.  Y.  Sup.        »  Oakley  v.  Morton,  11  N.  Y.  25. 
Ct.  Rep.  645),  but  we  doubt  the  cor-        ">  Baldwin  v.  Munn,  2  Wend.  399. 
rectness  of  the  decision.  "  Uosley  v.  Black,  28  N.  Y.  438,26 

»  Woodruff  V.  Cook,  25  Barb.  505.  How.  98  ;    Van  Buskirk  v.  Stow,  43 

*  Robinson  v.  Wheeler,  25  N.  Y.  252,  Barb.  9. 

259.  18  Laraway  v.  Perkins,  10  N.  Y.  371. 

'  Holmes  v.  Holmes,  9  N.  Y.  525.  "  Clark  v.   Grandall,  27   Baib.   73. 

'  Burgh  v.  Legge,  5  Mees.  &  Welsh.  Metcalfe's  note  to  Ranay  v.  Alexander » 

418.  Yelv.  77,  marg.  p. 


SEC    III.]  STATEMENT   OF   NEW   MATTER.  567 

except  in  slander  or  libel,  will  be  stricken  out  as  frivolous ;  *  and, 
hence,  in  an  action  for  breach  of  promise  to  marry,  defendant  may, 
without  pleading  the  fact,  prove  in  mitigation  of  damages,  that 
plaintiff  was  in  the  habit  of  drinking  intoxicating  liquors  to 
excess ;  *  or  was  guilty  of  other  improper  conduct ; '  or  in  an  action 
for  seducing  plaintifi''s  daughter  or  wife,  that  he  was  guilty  of 
careless  or  improper  conduct  not  amounting  to  consent ;  *  but  if 
such  evidence  be  rejected  because  the  facts  be  not  pleaded,  it  must 
be  specially  offered  in  mitigation.^  That  plaintiff' 's  negligence 
contributed  to  the  injury  need  not  be  pleaded ;  *  nor  in  an  action 
for  seducing  plaintiff' 's  wife,  that  he  and  his  wife  were  alienated 
in  their  affections/  It  is  not  necessary,  in  an  action,  to  set  up  a 
revocation  of  the  authority  of  an  agent/] 

Much  that  was  said  in  regard  to  the  facts  necessary  to  be  stated 
in  the  plaintiff''s  complaint  may  be  applied  to  the  statement  of 
new  matter  in  the  defendant's  answer.  In  respect  to  the  set-off" 
of  the  defendant,  and  every  other  species  of  counterclaim,  con- 
stituting a  ground  for  affirmative  relief,  these  rules,  of  course, 
apply.  This  part  of  the  subject,  however,  will  be  considered  in 
the  following  section.  So  also  to  any  other  matter  of  defense, 
constituting  a  discharge  or  a  bar  to  the  plaintiff's  cause  of  action. 
All  \kvQ  facts  must  be  pleaded,  which  the  defendant  will  be  bound 
to  establish  by  evidence,  to  constitute  the  bar ;  but  the  facts  them- 
selves, and  not  the  evidence,  must  be  pleaded.  In  causes  of  action 
that  heretofore  have  been  denominated  legal,  it  will  generally  be 
sufficient  to  state  these  facts  substantially  as  in  a  special  plea,  with- 
out regard  to  form.  Thus,  if  the  defendant  relies  upon  the  statute 
of  limitations,  which  he  is  obliged  to  set  up  in  his  answer,  it 
is  not  enough  for  him  to  say  that  he  pleads  the  statute  of  limita- 
tions, but  he  should  state  the  facts  constituting  the  defense  in  the 
usual  way,  that  the  "  cause  of  action  mentioned  in  the  plaintiff's 

'  Gilbert  y.  Rounds,  14  How.  46.  Button  v.  McGauley,  4  Trans.  App.  448. 

*  Button  V.  McCaulay,  4  Trans.  App.  See  this  case  below  (38  Barb.  416),  as  to 

447,  5  Abb.  N.  S.  29,  reversing  38  Barb,  offering  this  evidence  specially  in  miti- 

413.  gntion.   Eniffen  v.  McConnell.ZO  N.  Y. 

3  Palmer  v.  Andreici,  7  Wend.  143  ;  '385. 

KiiiffenY.  McConnell,?,0'i^.Y.2^^.  ^  McDonell    v.     Buffum,    31    How 

^  Bunnell    v.    Greathead,    49    Barb.  154. 

107  ;  Travis  v.  Barger,  34  Barb.  614 ;  '  Barter  v.  Crill,  33  Barb.  383. 

Kahm  V.  Freytag,  3  Rob.  678.  »  Ilier  v.  Grant,  47  N.  Y.  378. 

'  Travis   v.   Barger,  24   Barb.   614 ; 


568  THE  ANSWER.  [CH.  V. 

complaint  did  not  accrue  to  the  plaintiff,  at  any  time  within  six 
years  next  before  the  commencement  of  the  action." 

It  is  not  sufficient  in  such  an  answer,  even  under  the  Code,  to 

aver  that  the  note  or  bill  was  not  Tnade  within  six  years 

r*4T6]  next  before  the  commencement  of  *  the  suit.     The  time 

of  delivery,  and  not  of  the  making  of  the  note,  should  be 

alleged,  otherwise  the  issue  raised  is  wholly  immaterial,  and  the 

plaintiff  will  be  entitled  to  judgment  upon  the  merits.* 

So,  too,  if  he  desire  to  avail  himself  of  the  defense  of  tender, 
he  must  state  such  facts  as  he  will  be  bound  to  prove  on  the  trial 
to  constitute  the  defense.  As,  for  example,  that,  after  the  money 
mentioned  in  the  complaint  became  due,  and  before  the  com- 
mencement of  the  action,  he  offered  to  pay  and  tendered  the 
plaintiff  the  said  simi  of  money,  which  the  plaintiff  refused. 

He  must  also  state  the  specifio  sum  of  money  tendered,  and  it  is 
not  enough  to  state  in  general  terms  that  he  tendered  a  sum  equal 
or  greater  in  amount  than  the  plaintiff  claimed  ;  and  if  tender  is 
made  after  suit,  he  must  also  allege  that  the  costs  were  tendered 
and  paid  into  court,  otherwise  the  issue  thus  raised  is  wholly 
immaterial.*     And  so,  also,  in  case  of  tender  of  amends  for  a 

casual  or  involuntary  trespass. 
[*477]  *But  a  mere  general  allegation  of  an  award  having  been 
made  is  insufficient ;  the  substance  at  least,  if  not  the 
terms,  must  be  set  forth,  so  that  the  court  may  see  from  the  facts, 
which  are  affirmatively  alleged,  that  the  award  is  valid  and  bind- 
ing, and  constitutes  a  bar  to  the  action.* 

And  generally  the  same  rules  will  apply  to  every  other  defense 
to  an  action,  whether  on  contract  or  for  a  wrong.  The  facts  neces- 
sary and  essential  to  be  proved,  to  constitute  the  defense,  should 
be  stated,  in  order  to  their  admission  under  the  pleadings.  I  do 
not  say  that  an  omission  to  state  all  these  facts  will,  in  every 
case,  be  fatal  on  the  trial,  or  necessarily  shut  out  the  evidence. 
Doubtless  the  court  has  a  large  discretion  under  the  Code  ;  and, 
indeed,  is  required  by  section  176  *  to  disregard  any  defect  in  the 
pleadings  which  shall  not  affect  tJie   substantial  rights  of  the 

'  MaUory  v  Lamphear,  8  How.  Pr.  see,  also,  Holmes  v.  Holmes,  12  Barb, 
491.  137,  9  N.  Y.  525. 

'  People  V  Banker,  8  How.  Pr.  258  ;        ^  Oehm  v.  Levy,  3  Duer,  176. 

*  Code,  §§  169,  170. 


BEC.  III.]  STATEMENT   OF  NEW   MATTER.  f)69 

adverse  party.^  In  such  case,  a  party  undertaking  to  plead  a 
tender,  accord  and  satisfaction,  release,  or  anj  other  new  matter  of 
defense,  whether  legal  or  equitable,  ought  not  to  be  prejudiced  by 
any  defect  or  omission,  even  of  a  material  allegation,  if  it  has  not 
actually  misled  or  operated  to  the  prejudice  of  the  adverse  party. 

As,  for  example,  if  it  has  failed  to  apprise  him  of  some 
[*478]  fact  which  he  had  a  right  to  know,  or  some  matter  *upon 

which  the  defendant  relies  to  sustain  his  general  allega- 
tion, and  which,  by  a  failure  to  set  it  out,  the  plaintiff  may  not  be 
prepared  with  proof  to  controvert.  Thus,  in  the  case  of  Mo- 
Murray  V.  Thomas,^  the  mere  allegation  of  fraud,  without  aver- 
ring the  facts  to  establish  it,  failed  to  apprise  the  plaintiff  of  the 
particular  matters  upon  which  the  defendant  relied,  and  which 
the  plaintiff  had  a  right  to  know.  So,  too,  in  the  case  of  Gould  v. 
Horner,^  and  Fay  v.   Grimsteed.* 

The  same  rule  has  frequently  been  held  in  equity.  It  is  best 
illustrated,  perhaps,  in  the  case  of  a  plea  for  want  of  proper  parties. 
Such  a  plea  must  show  who  are  the  proper  parties,  not  indeed  by 
name,  for  that  might  be  impossible,  but  in  such  a  manner  as  to 
point  out  to  the  plaintiff  the  objection  to  his  bill  and  enable  him 
to  amend  by  adding  the  proper  parties.*  And,  indeed,  there 
were  cases  in  which  it  was  required  to  state  the  names,  if  the  more 
general  description  was  not  sufficient  to  enable  the  plaintiff  to 
ascertain,  with  reasonable  certainty,  the  names  of  the  absent 
parties." 

An  objection,  that  the  plaintiff  is  not  the  real  party  in 
['*4T9]  interest,  must  be  taken  in  the  answer.'     *But  such  answer 

must  contain  something  more  than  the  mere  averment 
that  the  plaintiff  is  not  "  the  real  party  in  interest ; "  it  must 
state  facts  going  to  show  that  some  person  other  than  the  plain- 
tiff is  the  real  party.*  And  the  same  rule  has  been  held  in 
regard  to  an  allegation  in  the  answer  that  the  plaintiff  is  not  the 
lawful  holder  and  owner  of  a  promissory  note,  without  alleging 

'  And  see,  further,  post,  ch.  9,  Amend-  «  Story's  Eq.  PI.,  §  238.-  Robinson  v. 

ments.  Smith,  3  Paige,  333. 

"^  5  How.  Pr.  14.  '  Jnrkson  v.  Whedon,  1  Smith's  Com. 

3  1  Code  R.  N.  S.  365.  PI.  141. 

*  10  Barb.  S.  C.  331.  s  Eussdl  v.  Clapp,  4  How.  Pr.  347. 

*  Mitf.  Eq.  PI.  180, 181 ;  1  Danl.  Ch. 
Pr.  384-388. 

72 


570  THE  ANSWER.  [CH.  V. 

any  fact  or  facts  going  to  show  that  a  thh'd  person  was  the  owner 
and  real  party  in  interest/  But  the  rule,  as  was  noticed  on  a 
previous  page,"  applies  only  to  cases  where,  independent  of  the 
allegation  of  ownership,  the  Complaint  contains  facts  which 
establish  j^rima  facie  the  plaintiff's  ownership.  If,  without 
3ontroverting  these  facts,  the  defendant  sets  up  the  defense  that 
the  plaintiff  is  not  the  real  party  in  interest,  he  must  state  facts 
to  show  that  some  other  person  is.  But  where  an  action  respecting 
property,  personal  or  real,  is  sought  to  be  sustained  on  a  mere 
general  allegation  of  possession  and  property  or  ownership,'  this 
may  be  put  in  issue  by  a  denial,  without  setting  up  in  the  answer 
facts  going  to  show  that  some  other  person  is  in  the  possession  or 
ownership ;  for  the  plaintiff  must  prove  his  allegations,  and  the 

defendant,  under  a  denial,  may  controvert  them.* 
[*480]       *Thus,   an  answer  that  the   plaintiffs  are   not   joint 

owners  of  personal  property,  in  an  action  for  the  taking 
thereof,^  and  an  answer  that  one  of  the  defendants  "  never  was  a 
copartner,"  '  have  been  held  sufficient. 

The  rule  we  are  considering  prohibits  the  averment  of  a  mere 
conclusion  of  law  as  "new  matter"  in  the  answer,  without 
stating  specifically  the  facts  on  which  it  is  based.  Thus,  in  Clark 
V.  Hughes^  a  defense,  turning  on  the  point  of  adverse  possession, 
was  attempted  to  be  set  up  in  the  answer,  in  general  terms,  as  an 
adverse  possession  to  part  of  a  farm,  without  stating  what  persons 
were  in  possession,  or  that  the  tenants  had  any  title,  or  setting 
forth  any  facts  showing  their  possession  to  be  adverse ;  and  such 
answer  was  held  insufficient.  So,  in  Brown  v.  Colie^  in  the 
New  York  common  pleas,  it  is  held  that  an  answer  cannot  deny 
simple  indebtedness,  or  that  a  balance  is  due  the  plaintiff,  but 
must  state  the  specific  fticts  upon  which  such  denial  rests.  It  is 
said,  however,  in  that  ease,  that  Mdiere  the  plaintiff  loosely  alleges 

a  general  indebtedness  and  balance,  which  the  defendant 
[*4:81]  as  *  loosely  and  generally  denies,  and  the  parties  go  to 

trial  upon  such  imperfect  pleadings,  both  parties  might 
be  permitted   to  go  upon   the  broadest  ground   of  claim  and 

1  Fleury  v.  Rorjet,  5  Sandf.  646.  »  V^alrod  v.  Bennet,  6  Barb.  144. 

'  Ante,  pp.  420,  421,  marq.  pp.  *  Corninrj  v.  HaigM,  1  Code,  72. 

«  Heine  v.  Anderson,  2  Duer,  318.  '  13  Barb.  147. 

♦  See  ante,  409,  marg.  p.  «  1  Smith's  Com.  PI.  265. 


SEC.  III.]  STATEMENT   OF  NEW   MATTER.  o7i 

defense;  although,  if  the  defendant  qualifies  his  denial  cf  any 
balance  due,  by  alleging  the  specific  ground  on  wliich  it  rests,  he 
will  be  limited  to  that  ground  in  his  proofs  upon  the  trial,  and 
will  be  prohibited  from  showing  any  defense  of  a  difi'erent  nature. 

The  foregoing  observations,  relative  to  the  general  rules  vvhich 
govern  the  statement  of  new  matter  by  the  defendant  in  his 
answer,  it  may  be  observed,  are  equally  applicable  to  all  classes 
of  actions,  those  of  an  equitable  as  well  as  those  of  a  legal  nature. 
The  strict  analogy  between  the  two  modes  of  defensive  pleading, 
regarded  as  pleading  merely,  and  not  as  a  means  of  discovery, 
even  under  the  old  systems,  has  been  already  pointed  out  in  this 
chapter,'  and  it  is  unnecessary  to  add  any  thing  further  on  that 
subject.  I  can  see  nothing  in  the  Code  which  countenances 
any  thing  like  a  distinction,  in  the  mode  of  stating  a  defense 
any  more  than  in  the  mode  of  stating  a  cause  of  action,  between 
the  two  classes  of  cases.  It  remains  now  to  notice  briefly 
6ome  provisions  of  the  Code  applicable  to  defensive  pleading  in 
particular  cases  ;  these  may  be  classed  under  the  head  of  slander 
and  libel,  jicdgmenfs,  2^^"ivate  statutes  and  conditions  frecedent, 
and  title  in  actions  to  recover  property  distrained  for 
[*482]  damage.     *And  first : 

In  an  action  for  libel  or  slander —  The  Code  provides 
that  the  defendant  in  his  answer  may  "  allege  both  the  truth  of 
the  matter  charged  as  defamatory,  and  any  mitigating  circum- 
stances to  reduce  the  amount  of  damages  ;  and,  whether  he  prove 
the  justification  or  not,  he  may  give  in  evidence  the  mitigating 
circumstance." " 

This  section  makes  an  essential  change  in  the  rules  of  pleading 
and  evidence,  in  actions  of  slander  and  libel,  namely,  that  where 
the  defendant  alleges  the  truth  of  the  defamatory  charges,  or 
justifies  the  speaking  or  publication,  he  may  also  allege  and 
prove  circumstances  in  mitigation  of  damages ;  this  he  could  not 
do  under  the  old  system.  A  variety  of  questions  have  been, 
raised,  in  regard  to  the  true  construction  and  meaning  of  this 
statute,  and  the  decisions  in  many  respects  have  not  been  uniform. 

I  shall  have  occasion  to  notice  the  more  important  of  these 
cases  in  the  brief  review  of  the  subject  proposed. 

'  Ante,  pp.  892-98,  marg.  pp.  «  Code,  §  165. 


572  THE   ANSWER.  |;  .1.  V 

The  first  question  presented  is,  wlietlier,  under  tlie  Code,  a 
defendant  may  deny  the  speaking  of  the  words  and  at  the  same 
time  justify.  This,  I  apprehend,  is  not  a  very  difiicult  question 
to  answer.*  The  Code  allows  the  defendant  to  set  up  as  many 
defenses  as  he  may  have ;  and  it  cannot  be  doubted  that  justifica- 
tion is  a  complete  and  full  defense.  And,  whatever  may 
[*483]  be  the  rule  in  regard  to  defenses  *  absolutely  inconsistent 
with  each  other  (which  will  be  hereafter  noticed),  it  seems 
well  settled  that  the  defenses  of  a  naked  denial  of  the  speaking 
of  the  words,  and  an  averment  of  the  truth  of  the  words  spoken, 
are  not  included  in  such  rule.  It  was  said,  indeed,  in  AnilAl  v. 
Hunter^  that  an  answer  justifying  the  words  must  confess  the 
speaking  of  them.  But  this  seems  to  refer  rather  to  the  form  of 
the  separate  plea  of  justification  than  to  its  being  joined  with  a 
distinct  answer  of  denial.  The  rule  that  every  defense  must  be 
either  a  denial  or  a  confession  and  avoidance,  is  no  doubt  appli- 
cable in  all  cases ;  and  the  separate  answer  of  justification,  standing 
by  itself,  must,  upon  its  face,  contain  an  admission  of  the  speaking, 
otherwise  the  facts  of  the  justificatiqn  cannot  be  considered  as 
being  distinctly  and  positively  alleged ;  and  this,  as  I  understand 
it,  is  the  reason  why  a  hypothetical  defense  of  justification,  in  an 
action  for  slander,  etc.,  is  held  bad,  as  in  the  cases  of  Sayles  v. 
Woodin*  Lewis  v.  Kendall*  and  others.  But  this  does  not 
prevent  the  defendant,  in  separate  answers,  from  denying  and 
justifying  the  speaking  of  the  words.  He  ma}^,  as  was  said  in 
Buddington  v.  Davis,"  deny  all,  or  any,  of  the  allegations  of  the 
complaint.  He  may,  then,  by  a  separate  statement  in  the  same 
answer,  allege  the  truth  of  the  statements  contained  in  the 
libelous  publication ;  and  then,  again,  if  such  an  allega- 
[*484]  tion  *  will  constitute  a  defense,  he  may  state,  as  a  third 
defense,  that  the  publication  was  privileged,  though  he 
cannot,  in  the  same  statement  of  defense,  deny  the  allegations 
of  the  complaint  and  set  up  new  matter  to  avoid  their  eflect. 
And  this  is  sustained   by   the   cases  of  Butler  v.    Wentioorth* 

'  [There  is  now  no  question  but  that  *  6  How.  Pr.  255. 

he  can.     BnJder  v.  Wentworth,  17  Barb.  *  6  How.  Pr.  84. 

649 ;  Ormshy  v.  Dourjlass,  5  Duer,  (Uio  ;  *  6  How.  Pr.  59. 

Payson  v.  'MncComber,  3    Allen,  69  ;  *  6  How.  Pr.  401. 

Ho'Uenbeck  v.  Clow,  9  How.  289 ;  Bryant  •  9  How.  Pr.  283. 
y.  -Bryant,  2  Rob.  616.] 


8E0.  III.]  STATEMENT   OF   NEW  MATTER.  573 

Stiles  V.  Comstocli^  Hallenhech  v.  Clow^  and  several  otliLMs. 
But  in  pleading  a  justification  now,  as  under  the  old  system, 
the  facts  going  to  establish  it  mnst  be  stated.  It  is  not  sufficient 
to  allege  barely  that  the  facts  are  true,  but  the  defendant  must 
state  such  facts  as  will  show  the  plaintiff  guilty  of  the  offense 
imputed  to  him.'  Nor  can  a  justification  be  partial,  but  it  must 
go  to  the  whole  extent  of  the  charge."  And,  in  an  action  of  slander 
on  a  charge  that  plaintiff  "is  a  thief  and  has  stolen  my  gold 
pencil,"  the  defendant,  in  justification,  may  allege  a  variety  of 
thefts  of  different  articles  by  the  plaintiff,  to  show  the  truth  of  the 
general  charge  that  plaintiff  is  a  thief.* 

The  next  question  which  arises  in  pleading  an  answer  in  slander 
or  libel  is,  whether  circumstances  in  mitigation  of  damages  are 
properly  pleaded  with  a  mere  denial  of  the  words  and  without 

any  justification.  Allegations,  in  mitigation  of  damages, 
[*485]  may  *  be  joined  with  a  justification  by  the  Code,  and  here 

consists  the  alteration  made  in  the  old  rule  of  pleading. 
Except,  in  this  respect,  it  has  been  thought  na  alteration  has  been 
made  in  the  common-law  rules  of  pleading  in  libel  and  slander 
cases.  According  to  these  rules,  evidence  of  mitigating  circum- 
stances might  be  given  under  the  general  traverse,  and  this  has 
been  considered  to  be  the  rule  still.  But  the  question  goes  further, 
namely,  may  such  allegations  be  properly  made  in  the  answer  ? 

[There  is  now  no  question  but  they  may.'] 
[*486]       *Thus,  in  Follet  v.  Jewett^  Justice  Selden  dissents 

from  the  case  of  Graham  v.  Stone,  and  holds  that  mat- 
ter in  mitigation  may  be  pleaded  either  with  or  without  a 
justification ;  if  pleaded,  however,  with  a  justification,  it  should 
be  pleaded  separate  from,  and  not  as  a  part  of  it.  In  Stiles  v. 
Comstock^  Justice  Shankland  intimates  a  similar  opinion,  and 
goes  so  far  as  to  question  whether  evidence  in  mitigation  can  be 
given  unless  pleaded.  And,  in  the  still  later  case  of  Jleaton  v. 
Wright,^  Justice  James  fully  indorses  the  decision  in  Follett  v. 

1  9  How.  Pr.  48.  '  Jaycocks  v.  Ayres,  7  How.  Pr.  215. 

«  9  How.  Pr.  289.  «  [Bolevin  v.  Wilder,  34  How.  489  ■ 

'  Anonymoua,  3  How.  Pr.  406 ;  Anihal  Bush  v.  Prosper,  11  N.  Y.  347 ;  Bishj^  ^t 

V.  Hunter,  7  id.  224  ;  Sayles  v.  Woodin,  8hnw,  12  id.  67.] 

6  id.  84  ;  Fry  v.  Bennett,  5  Sandf.  54, 1  •>  11  Leg.  Obs.  193. 

Code  R.  N.  S.  238.  8  9  How.  Pr.  48. 

*  Loveland  v.  Hosmer,  8  How.  Pr.  MO  How.  Pr.  79. 
215 ;  Bush  v.  Prosser,  13  Barb.  S.  C.  221. 


574  THE  ANSWER.  [CH.  V. 

Jewett,  that  the  defendant  may  allege  both  the  truth  of  the 
matters  charged  and  mitigating  circumstances,  or  either  j  and, 
indeed,  considers  that  the  section  of  the  Code  under  consideration 
has  changed,  not  only  the  rule  of  pleading,  but  the  rule  of  evi- 
dence, in  such  actions.  And,  notwithstanding  what  was 
r*4.8Y]  said  by  Justice  Harris,  Brown  v.  Orvis,^  *and  Herr  v. 
Barriburg^  cited  supra^  I  consider  the  doctrine  laid  down 
by  him,  in  the  more  recent  case  of  Hallenbeck  v.  Cloio^  as  fully 
sustaining  the  position  that  matter  in  mitigation  may  be  pleaded, 
without  justification,  under  a  general  denial.*'  In  the  latter  case, 
the  defendant  denied  each  and  every  allegation  of  the  complaint, 
and  then  alleged  that  the  words  were  spoken  under  such  circum- 
stances and  with  such  explanations  (describing  them)  as  to  show 
that  they  were  not  slanderous ;  and  this  he  was  allowed  to  do, 
without  any  justification  of  the  truth  of  the  words,  although  it 
was  conceded  that  he  might  have  been  allowed  to  give  the  evi- 
dence under  the  general  denial. 

The  conclusion  reached  in  that  case  seems  perfectly  logical,  and 
a  careful  examination  of  the  subject  will,  I  think,  show  that  it  is 
entirely  consistent  with  the  true  theory  of  the  answer  under  the 
Code.  Thus,  a  partial  defense,  as  has  been  elsewhere  noticed, 
may  be  pleaded.  And  though  there  may  be  a  distinction,  as  was 
insisted  by  Newman  v.  Otto^  between  a  partial  defense  in  an 
action  of  tort,  and  one  in  an  action  on  contract,  so  far  as  it  formed 
the  subject  of  a  special  plea  at  common  law,  yet  there  could  be, 
and  was,  very  little,  if  any,  difference  between  them  as  a  notice 
to  the  opposite  party  under  the  general  issue.  Mitigating  cir- 
cumstances might  be  so  set  up  in  a  notice  with  the  general 
[*488]  issue  *under  the  old  practice,  and  why  not  now  in  the 
answer  under  the  new  ?  I  can  certainly  see  no  objection 
to  it,  nor  in  applying  the  equity  principle  of  pleading,  even  to  an 
answer  in  libel  or  slander  cases  under  the  Code.*     Besides,  it 

'  6  How.  Pr.  376.  Libel,  ^  361 ;  19  Abb.  Pr.  40 ;  13  How. 

^  10  How.  Pr.  128.  97,  14  id.  46.     The  question  is  still  iu 

»  9  IIow.  Pr.  289.  doubt.] 

*  [But  see  Townsend's  Slander  and  '"  4  Sandf.  668. 


♦The  case  of  Bush  v.  Prof^scr,  in  the  court  of  appeals  (I  Kernan,  347),  reported 
eince  the  foregoing  w<is  written,  decides  this  question,  in  accordance  with  the  views 
expressed  in  the  text,  overruling  the  decision  in  the  same  case  at  general  term, 
and  disapproving,  upon  this  point,  the  cases  of  Oraham  v.  Stone,  Brown,  v.  Orvis 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  '575 

should  be  remembered  the  case  oi.  Graham  v.  Stone,  and  other 
cases,  holding  that  mitigating  circumstances  may  not  be  pleaded^ 
were  decided  before  the  amendment  of  1852,  when  a  direct  issue 
might  and  must  be  taken  upon  the  answer  by  a  reply,  and  the 
answer,  therefore,  stood  in  some  sense  as  a  special  plea.     This 

cannot  now  be  done ;  the  answer  is  deemed  "  contro- 
[*489]  verted,"  not  for  the  purpose  of  ^raising  an  issue  simply, 

but  to  put  the  plaintiff  to  his  proof,  as  he  was  before  in 
respect  to  matters  set  up  in  the  notice  with  the  general  issue,  and 
to  which  neither  reply  nor  demurrer  was  allowed.  I  consider, 
therefore,  the  true  doctrine  to  be,  that  there  is  nothing  in  the  case 
to  prohibit  such  pleading  if  the  defendant  choose,  though  it  is, 
perhaps,  better  to  avoid  it  if  the  matter  is  such  as  may  clearly  and 
without  doubt  come  in  under  a  denial. 

But  the  matter  set  up  in  mitigation  must  not  be  scandalous, 
nor  irrelevant,  nor  such  as  clearly  cannot  be  given  in  evidence  for 
any  purpose ;  otherwise  it  will  be  struck  out  on  motion.  In 
Graham  v.  Stone,  supra,  the  court  noticed  an  error  into  which 
the  defendant's  attorney  and  many  others  had  fallen,  in  regard  to 
the  character  of  the  mitigating  circumstances  which  the  defendant 
might  allege.  It  was  not  any  thing  and  every  thing  he  might 
deem  proper  to  excuse  or  palliate  the  offense  charged ;  but  only 
Buch  circumstances  as  the  well-estdbJished  rules  of  law  allow  as 
evidence  in  mitigation  and  nothing  more.  And  the  same 
doctrine  was  held  \\\  Brown  v.  Orvis  ;'  the  defendant  may  allege 

•  6  How.  Pr.  376  [Bolevin  v.  Wilder,  34  How.  489.J 

and  similar  cases  above  cited.  In  the  carefully  considered  opinions  in  this  case,  it 
does  not  seem  to  be  expressly  adjudicated  whether  matter  merely  in  mitigation  must 
be  pleaded,  oi  whether  such  matter  might  be  given  in  evidence  under  a  general 
denial.  It  is  intimated,  in  the  opinion  of  one  of  the  judges,  that  the  decision  of 
this  question  was  immaterial  to  the  case  under  consideration,  but  he  considered, 
nevertheless,  that  "the  facts  (mitigating  circumstances)  may  and  should  be  pleaded." 
Per  W.  F.  Allen,  J.,  page  353. 

The  question  may  still  arise  whether.  If  there  be  no  general  or  special  denial  or  justi- 
fication, an  answer  setting  up  mitigating  circumstances  alone,  forms  an  wst/e  capable 
of  trial.  If  we  are  correct  in  the  assumption  that  such  matter,  as  a  general  rule,  is 
admissible  on  the  question  of  damages,  on  the  trial  or  assessment  of  damages,  without 
being  pleaded,  then  such  matter  ought  not  to  be  suffered  to  stand  alone  as  a  defense, 
and  this  was  the  principle  upon  which  the  case  of  Lanev.  GilberU  9  How.  150,  rested. 
But  if  the  rule  intimated  in  Stiles  v.  ComHtock,  mpra,  is  correct,  that  ev.dence  in  miti- 
gation is  inadmisMljle  unless  pleaded,  then  such  matter  forms  a  partial  defence,  which  It 
Is  perfectly  proper  lo  plead  alone,  without  even  a  denial,  in  the  same  manner  as  a  set- 
off in  an  action  on  contract. 


576  THE  ANSWER.-  [CII.  V. 

with  a  justification  any  mitigating  circumstances,  wliich  he  will 
be  allowed  to  prove,  and  all  else  will  be  struck  out  as  irrelevant. 

It  is  held  in  an  anonymous  case  at  special  term,'  that  under  a 
general  denial,  in  an  action  of  slander,  the  defendant  can- 
[*490]  not  give  evidence  of  the  -plaintiff's  bad  character.  It 
does  not  appear  from  the  brief  note  of  the  case,  as 
reported,  upon  what  ground  the  decision  was  put.  The  contrary 
was  held  in  another  anonymous  case "  by  Justice  Baeculo,  and  is 
in  accordance  with  the  common-law  rule,'  and  is,  no  doubt,  correct 
practice  under  the  Code. 

The  rule  at  common  law  was,  that  facts  and  circumstances 
which  tend  to  disprove  malice,  by  showing  that  the  defendant, 
though  mistaken,  believed  the  charge  to  be  true  when  it  was 
made,  might  be  given  in  evidence  in  mitigation  of  damages ;  but 
if  the  facts  and  circumstances  oifered  tended  to  establish  the  truth 
of  the  charge  or  formed  a  link  in  a  chain  of  evidence  going  to 
make  out  a  justification,  they  were  not  admissible  in  mitigation 
of  damages ;  that  is,  if  the  evidence  tended  to  make  out  a  justifi- 
cation and  fell  short  of  the  charge,  it  was  not  admissible  either  in 
justification  of  the  charge  or  in  mitigation  of  damages.  The  case 
of  Bush  V.  Prosser*  at  general  term,  held  this  rule  of  the  common 
law  to  be  unchanged  by  the  Code.  But  that  case  was  reversed 
by  the  court  of  appeals,^  and  it  is  now  decided  that  a  defendant,  if 
his  defense  falls  short  of  a  justification,  may  prove  the  same  facts  in 
mitiii'ation  of  damaD-es."^ 

>  6  How.  Pr.  160,  per  Cadt,  J.  *  13  Barb.  S.  C.  228. 

«  8  How.  Pr.  434.  «  1  Kern.  347. 

3 1  Phil.  Ev.  146,  2  Cow.  282, 7  id.  613. 

♦  The  recent  cases  of  Whrede  v.  Bennett  (reported  in  the  N.  T.  Times),  in  the  N.  Y, 
superior  court,  is  in  accordance  witli  this  decision.  HofFiMAN,  J.,  says:  "I  appre- 
hend, then,  that  the  Code,  §  165,  has  brolien  in  upon  the  rule,  which  Is  stated  in  Cooper 
V.  Barber,  24  Wend.  107,  and  other  cases,  that  evidence  going  only  to  damages  must 
be  such  as  admits  the  charge  to  be  false ;  that  if  it  tend  to  make  out  a  justification,  and 
fall  short  of  the  mark,  it  is  inadmissible  as  to  damages,  because  it  does  not  admit  the 
falsity.  And  it  appears  to  me  that  the  rule,  as  declared  in  Oialmer  v.  ShacMe,  6  Car.  & 
Payne,  475,  now  prevails,  viz. :  That  if  a  justification  is  pleaded,  but  the  evidence  falls 
short  of  satisfying  the  jury  that  the  offense  was  committed  by  the  plaintiff,  yet  tliey 
may  take  tlie  facts  into  consideration,  in  estimating  the  damages.  Nor  do  I  see  that 
there  exists  a  sound  distinction  between  a  justification  of  the  publication  resting  upon 
its  being  privileged,  and  one  resting  upon  the  charges  being  true.  I  cannot  see  the 
good  sense  or  sound  logic;  of  a  rule  which  prohibits  a  defendant  from  urging  that 
although  the  evidence  he  has  adduced  cannot  legally  warrant  a  substantial  conviction 
for  the  crime  charged,  yet  it  so  closely  approaches  to  it  as  to  free  the  publication  from 


BEC.  III.]  STATEMKiSTT   OF   NEW   MATTER.  677 

[Matters  whicli  tend  to  disprove  malice  may  be  pleaded  in 
mitigation  of  damages,  although  they  may  tend  to  prove  the 
truth  of  the  matters  complained  of.  Defendant  must  plead  facts 
and  circumstances  which  would  reasonably  induce  in  the  mind  of 
a  person  of  ordinary  intelligence  and  knowledge  a  belief  of  the 
truth  of  the  charge,  and  show  that  defendant  when  he  made  the 
charge  knew  or  had  been  informed  of  such  facts  and  circumstances. 
He  should  also  allege  that  such  facts  and  circumstances  induced 
him  to  believe  the  charge  to  be  true.'  An  allegation  that  the 
words  were  spoken  in  the  heat  of  passion  caused  by  the  present 
acts  and  conduct  of  plaintiff  are  proper ;"  so  any  facts  tending  to 
mitigate  the  damages.'  In  an  action  for  libel,  an  answer  setting 
up  that  the  defendant  made  the  publication  at  the  request  of  and 
on  the  information  of  a  third  person  is  bad.*  Where  matter  is  set 
up  in  mitigation  it  should  be  so  stated,^  although  if  it  contain 
facts  properly  pleaded  as  a  defense,  either  in  bar  or  in  mitigation, 
it  is  not  easy  to  see  how  a  demurrer  will  lie  thereto.*  The 
defendant  is  not  obliged  to  plead  or  show  why  or  how  the  law 
enables  him  to  do  so.  In  slander,  for  repeating  a  rumor  that 
plaintiff  had  failed,  the  defendant  if  he  would  justify  must  plead 
facts  showing  that  he  believed  the  words  spoken  to  be  true,  and 

spoke  them  on  a  justifiable  occasion.'] 
[*491]       *  This  brings  us  to  another  question,  namely,  whether, 
if  a  defendant  denies  the  charge  and  dX?>o  justifies,  he  may 
introduce  in  mitigation  of  damages  evidence  of  facts  not  set  up  in 
the  answer. 

The  Code  provides  that  the  defendant    "may  allege  both  the 

*  Dolevin  v.  Wilder,  34  How.  89 ;  he  add  that  "  he  believed  such  infor- 
Oorton  V.  Keeler,  51  Barb.  475.  matiou  to  be  true,"  which  allegation 

*  Dolevin  v.  Wilder,  34  How.  89.  was  contained  in  the  answer  in  Hager 
^  Townsend  on  Slander  and  Libel,     v.  Tibhetts. 

§  414  et  seq.     The  reader  should  con-        ^  Hager  v.  Tibhetts,  2  Abb.  N.  S.  97, 

Bult   Mr.  Townsend's   excellent  work  5  Conw.  Rob.  Pr.  103,  Voorhies'  Code, 

where  he  will  find  the  cases  fully  cited,  note  /  to  §  165. 

•*  Hager  v.  Tibhetts,  3  Abb.  N.  S.  97  ;        "  Gorton  v.  Keeler,  51  Barb.  483. 
but  see  Huson  v.  Dale,  19  Mich.  17,  if        '  Watkin  v.  Hall,  L.  R.,  3  Q.  B.  396. 

that  imputation  of  malice,  which,  without  such  evidence,  would  attach  to  it.  At  any 
rate,  until  otherwise  instructed,  I  consider  the  Code  as  permitting  the  use  of  the  testi- 
mony for  such  a  purpose.  It  is  obvious  that  this  proposition  is  widely  different  from 
that  of  the  admissibility  of  mere  rumors,  or  of  general  bad  character  and  repute.  It 
Was  against  this  that  the  celebrated  opinion  of  Baron  Wood  was  directed  in  .7o»as  v. 
Stfphevx,  n  Price,  235.  With  these  views,  I  am  not  able  to  say  that  any  part  of  thia 
answer  is  irrelevant  or  badly  pleaded."    See,  also,  Heaton  v.  Wright,  10  How.  Fr.  97. 

73 


678  THE  ANSWER.  [CIT.  V. 

truth  of  the  matter  charged  as  defamatory,  and  may  give  evi- 
dence of  the  mitigating  circumstances  whether  he  prove  his 
justification  or  not.  This  he  could  not  do  before.  But  if  he 
neglect,  with  his  justification,  to  allege  the  circumstances  on  which 
he  relies  in  mitigation,  may  he  still  prove  them,  notwithstanding 

he  has  set  up  in  his  answer  the  truth  of  the  words  spoken  ? 
p-iOS]       *  I   am  not  aware   that  there   has  heen  any  express 

decision  to  the  point,  but  it  seems  to  me  the  question 
must  be  answered  in  the  affirmative.  We  have  already  seen  that 
the  defendant  may  separately  deny  and  also  justify  in  the  same 
answer.  We  have  also  seen  that  under  his  denial,  mitigating 
circumstances,  going  to  the  question  of  damages,  merely,  may  be 
proved.  The  abatement  of  damages  by  reason  of  the  mitigating 
circumstances,  as  Avant  of  malice,  etc.,  etc.,  is  a  pari  of  the 
defense  taken  by  a  general  denial ;  in  other  words,  the  allegation 
in  the  complaint  of  the  damages  sustained  is  a  fact  upon  which 
issue  may  be  taken,  which  thereupon  becomes  a  question  of 
evidence  on  the  trial,  and,  if  the  defendant  may  plead  as  many 
defenses  as  he  shall  have,  there  seems  no  good  reason  why  he 
should  be  deprived  of  the  full  benefit  of  a  portion  of  one  defense, 
namely,  his  general  denial,  simply  because  he  has  chosen  to  set 
forth  another,  to  wit,  a  justification,  which  he  has  failed  to  prove. 
The  section  of  the  Code  under  consideration  seems  designed 
rather  as  a  rule  of  evidence  than  a  rule  of  pleading ;  and  the 
provision  that  the  defendant  may  allege  the  truth  of  the  matters 
charged,  and  mitigating  circumstances,  is  permissive,  and  was 
intended  to  give  him  a  right  in  his  defense  on  the  trial  which  he 
did  not  have  before.'     It  is  not  said,  however,  that  he  must 

plead  in  mitigation  when  he  justifies,  otherwise  he 
[*i93]  *loses  the  full  benefit  of  his  general  denial.     I  do  not 

doubt,  however,  that,  where  the  justification  stands  alone 
in  the  answer,  the  defendant  will  be  precluded  from  giving  evi- 
dence of  facts  not  pleaded  in  mitigation. 

If  the  defense  relied  on  is  privilege,  the  answer  may  set  up  the 
facts  going  to  establish  the  legal  conclusion  that  the  words  are 
privileged.     If  they  are  privileged  only  on  the  ground  that  cer- 

'  See  this  subject  discussed  in  the  opinion  of  Selden,  J.,  in  Bus7i  v.  Prosser, 
1  Kern.  347. 


isEC.  III.]  statkme:s"t  of  new  mattek.  579 

tain  events  happened,  tlie  happening  of  those  events  must  be 
sufiiciently  alleged  in  the  answer  in  order  to  enable  the  defendant 
to  avail  himself  of  such  privilege.'  It  has  been  intimated  that  an 
answer  denying  malice  is  now  the  proper  mode  of  setting  up  the 
defense  of  privilege."  But  this  does  not  accord  with  the  theory 
of  pleading  the  facts,  and  not  legal  conclusions  and  inferences 
drawn  from  the  facts.  If  the  matters  alleged  as  libelous  are 
absolutely  privileged,  no  action  will  lie,  however  malicious  or 
nnfounded  the  charge  may  be  ;  and  in  such  action  it  is  unnecessary 
for  the  defendant  to  deny  malice.^  If  the  defendant,  therefore, 
set  up  his  defense  of  privilege,  under  a  mere  denial  of  malice,  it 
would  be  pleading  a  legal  conclusion  and  not  the  facts  of  his 
defense,  which,  as  we  have  elsewhere  considered,  is  contrary  to 
the  spirit  and  intent  of  the  rules  of  pleading  adopted  by 
[*494]  the  *Code.  The  defense  of  privilege  was  formerly  allow- 
able under  the  plea  of  the  general  issue ;  the  defendant 
may  now  deny  the  publication,  and  plead  this  defense.  Or,  if 
the  complaint  be  verified,  and  the  defendant  cannot  deny  the 
publication,  he  may  admit  it,  and  set  up  the  ficts  showing  his 
privilege  as  a  justiiication.  Or,  if  these  facts  should  be  ultimately 
decided  not  to  form  an  absolute  defense,  as  was  said  in  Whrede  v, 
Bennett,  heretofore  cited,*  they  may  be  properly  adduced  in  evi- 
dence to  mitiiJ^ate  damat;;es. 

1  Fry  V.  Bennett,  1  Code  R.  N.  S.  238,  ^  See  note  to  Fry  v.  Bevnett,  1  Code 
5  Sandf.  54.  R.  N.  S.  244. 

^  Garr  v.  Selden,  4  Comst.  91. 

"■Ante,  marg.  p.  490,  note.  In  this  case,  as  shown  by  the  analysis  of  the  answer  in  the 
opinion  of  the  court,  the  defendant  insisted  upon  the  following  separate  defenses ; 
That  the  allegations  in  the  libel  and  the  charges  made  against  the  plaintiff  are  all 
true,  with  an  exception,  which  is  immaterial.  The  defense  is  therefore  absolute,  no 
matter  what  motive  instigated  the  publication.  Again,  that  the  charges  were  made 
under  oath  in  a  public  court  of  justice,  an  action  of  the  judge  took  place  upon  them 
iu  presence  of  the  plaintiff,  which  authorized  a  reasonable  belief  that  the  accusations 
were  true,  and  so  believing  them  to  be  true,  they  were  published  without  n:alice,  and 
this  is  a  defense.  Again,  that  the  publication  was  privileged,  being  a  narrative,  with- 
out comment,  of  what  took  place  in  acourt  of  justice,  where  the  plaintiff  was  regularly 
brought  by  process  to  answer  for  an  alleged  offense.  That  this  forms  a  perfect  defense 
whetlier  the  charge  was  true  or  false,  and  whether  the  defendant  believed  or  did  not 
believe  it  to  be  true,  and  whetlier  the  grounds  of  belief  were  satisfactory  or  suflicient. 
And  lastly,  that  if  the  defendant  fails  in  establishing  the  truth  of  the  defamatory 
matter,  and  if  the  facts  tend  to  warrant  a  belief  of  it,  and  such  a  belief  form  no  di-fense  ; 
and  if  the  ple;i  of  a  privileged  publication  is  no  vnlid  defense,  then,  lie  snys,  that  the 
circumstances  of  the  charge  under  oalli,  the  exaiiiination  in  a  public  court,  ai.d  the 
result,  as  detailed,  are  available  in  mitigation  of  damages.  The  answer  was  held 
substantially  sufficient. 


580  THE  ATS^SWER.  [CH.  V. 

Express  malice,  it  is  said,  need  not  now  be  alleged  in  i 
[*495]  complaint,  even  when  necessary  to  be  shown  *on  the  trial ; ' 
nor  need  the  defendant,  when  he  justifies,  set  up  want  of 
malice  in  his  answer,  but  he  may  do  so  if  he  choose.  If  it  appears 
on  the  trial  that  the  publication  was  made  on  a  just  occasion,  the 
plaintiff  must  prove  malice,  or  facts  from  which  malice  is  iiiferred 
as  a  conclusion  of  law,  and  this  proof  the  defendant  may  rebut  by 
proper  evidence  on  his  part.^ 

[Words  spoken  or  written  in  a  judicial  proceeding  by  any  person, 
attorney  or  party,  having  a  duty  to  discharge  or  an  interest  to 
protect,  in  respect  to  such  proceeding,  are  absolutely  privileged, 
provided  the  matter  was  material  to  the  {ssv,e  or  inquiry  before 
the  court.  If  not  material,  he  is  liable,  unless  he  can  show  that 
he  spoke  or  wrote  the  words  in  good  faitli^  without  malice,  and 
having  reasonable  and  probable  cause  to  believe  they  were  both 
true  and  material.  Where  words,  concededly  defamatory,  are 
spoken  or  written  in  a  judicial  proceeding,  the  speaker  or  writer, 
if  he  claims  them  to  be  privileged,  must  show  clearly  that  such 
defamatory  matter  was  material  to  the  issue  or  inquiry  before  the 
court.  A  demurrer  to  a  complaint,  for  such  speaking  or  writing, 
must  fail,  unless  the  complaint  itself  show  the  materiality,  as  the 
demurrer  admits  the  falsity  of  the  words.  The  defendant  should 
plead  the  facts  by  answer,  and  show  the  materiality  affirmatively.' 
Words  imputing  to  a  mechanic  want  of  skill  or  knowledge  of  his 
craft,  are  actionable  per  se.*  Where  defendant  pleaded  that  he 
was  a  county  court  judge,  and  the  words  complained  of  were 
spoken  by  him  in  his  capacity  as  such  judge,  while  sitting  in  his 
court,  in  trying  a  cause  in  which  the  present  plaintiff  was  de- 
fendant. Replication,  that  the  said  words  were  spoken  falsely 
and  maliciously,  and  without  any  reasonable,  probable  or  justifiable 
cause,  and  without  any  foundation  whatever,  and  not  honajide  in 
the  discharge  of  the  defendant's  duty  as  judge,  and  were  wholly 
irrelevant  in  reference  to  the  matter  before  him,  held,  that  the 
replication  was  bad,  and  the  action  not  maintainable.^] 

The  form  and  requisites  of  an  answer  in  slander  and  libel  have 

'  Purdy  V.  Carpenter,  6  How.  Pr.  ^  Marsh  v.  Ellsworth,  36  How.  532,  1 
866.  Sweeny,  52. 

« Id,  *  Fiizgerald  v.  Jledfield,  51  Barb.  4^4. 

» Scott  V.  Stansfield,  L.  R.,  3  Exch.  2^0. 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  581 

already  been  noticed.     It  must,  as  in  any  other  class  of  actions, 
either  deny  or  traverse  all  the  material  allegations  m  the  com- 
it:  it  mnst  confess  and  avoid  them.^     It  should  be  certam 
direct  and  positive,  and  must  state  facts,  and  not  arguments,  and 
must  not  be  hypothetical  or  in  the  alternative.'     An  issue  canno 
be  taken  by  answer  on  a  mere  inuendo,  or  explanation  to  the 
meaning  o/ the  words  published  or  spoken.     I    the  muendo 
not  confined  to  mere  explanation,  but  materially  ^.larges    he 
sense  of  the  words,  the  proper  course  is  to  demur.      Nor  are  a  e 
gations  in  the  complaint  relative  to  the  motive  and  mtent  of  the 
defendant  in  publishing  a  libel  traversable ;  but  mat  er  of 
\^m^  inducement,  when  necessary  ^o  be  proved  m  order  to 
sustain  the  action,  becomes  material,  and  an  issue  may  be 

raised  thereon  by  answer.'  _  -j    ^       n^. 

Judgments,  private  statutes  and  conddzons  precedent.- ihe 
Code  has  also  provided  special  rules,  modifying  the  mode  of 
makin-  allegations  on  tliese  subjects  in  a  defensive  pleading.^   lie 
iudonnent  of  a  court  of  special  jurisdiction  may  be  stated,  in  the 
answer  as  well  as  in  a  complaint,  in  general  terms  to  have  been 
duly  given  or  made.^     So,  also,  in  pleading  the  performance  of 
conditions  precedent  in  a  contract,  it  may  be  stated  generally  that 
the  party  duly  performed  the  conditions.^   These  allegations  when 
set  up  in  an  answer,  if  new  matter,  are  deemed  controverted.     On 
such  an  issue  the  defendant,  or  party  pleading,  if  he  desire  to  avail 
himself  of  the  defense,  is  bound  to  establish  on  the  trial  the  facts 
conferring  jurisdiction,  or  the  facts  showing  the  perlormance  ot 
the  condition  precedent ;  and  the  plaintiff,  under  such  issue,  is  at 
liberty  to  disprove  all  or  any  of  them  by  competent  te^imony. 
A  private  statute,  or  a  right  derived  therefrom,  is  sufficiently 
pleaded  by  referring  to  such  statute  by  its  title  and  the  day  ol 
its  passage,  and  the  court  mnst  thereupon  take  judicial  notice 
of  the  same.'     No  decision  of  note  has  been  made  under  either 
of  these  statutes,  so  far  as  regards  the  pleadings  on  the  part  of  the 
>  Buaainoton  v.  Davis,  6  How.  Pr.    explana^on  £^J^,^f^^l^^ 
^^^-        .  T^    J  17    R  TT,^-a^    Pr    ^Q  •     Old  545.  IS  cloubtless  coTrect. 

worth,  9  id.  283,  apparently  approves  Id.,  §  loo. 

a  hypotlicticul  justiticatlon.     But  tlie 


582  THE   ANSWER.  [CIl.  V. 

[*497]  defendant.  The  reader  is  *  referred  to  M'hat  was  said  on 
tlie  subject  generally  in  the  chapter  on  the  complaint. 

Property  distrained  for  damage.  —  The  Code  provides  that 
in  an  action  to  recover  the  possession  of  property  distrained  doing 
damage,  an  answer  that  the  defendant  or  person  by  whose  com- 
mand he  acted  was  lawfully  possessed  of  the  real  property  upon 
which  the  distress  was  made,  and  that  the  property  distrained 
was,  at  the  time,  doing  damage  thereon,  shall  be  good,  without 
setting  forth  the  title  to  such  property.'  This  is  notliing  moj-e 
than  a  re-enactment  of  the  statute  relative  to  a  plea  by  the  defend- 
ant in  such  cases  in  an  action  of  replevin.'  The  facts  of  the  lawful 
possession  of  the  real  property  by  the  defendant,  and  that  the 
chattels  distrained  were  doing  damage,  constitute  new  matter, 
which  must  be  alleged  by  the  defendant  in  his  answer,  in  order 
to  entitle  him  to  give  evidence  thereof ;  but  such  allegation  may 
be  in  general  terms,  and  the  facts  going  to  establish  the  title  niay 
be  proved  on  the  trial.  In  other  actions  of  trespass,  etc.,  if  tlie 
defendant  justifies  under  title,  right  of  way,  etc.,  he  should,  it 
seems,  plead  specially  the  facts  going  to  es':ablish  the  title,  etc., 
in  order  to  introduce  evidence  thereof  on  the  trial.  This  is  in 
accordance  with  the  general  rule  in  actions  at  law,  that  the  plead- 
ings must  show  title.  It  w^as  sufficient  to  state  a  seizure 
[*498]  in  fee  simple  in  general  terms,  that  *is,  that  the  party  "  is 
seized  in  fee  of  a  certain  farm  of  land,"  etc.  But  in 
pleading  a  particular  estate,  such  as  an  estate  for  life,  for  years. 
or  at  will,  it  was  necessary  to  show  the  commencement  of  the 
estate,  and  the  derivation  of  title  from  the  last  seizure  in  fee 
simple. 

2.  ^VTiat  may  he  alleged  as  new  matter.  —  Having  thus  consid- 
ered what  matters  mw.s'^  be  alleged  in  the  answer  by  the  defendant, 
I  shall  next  briefly  notice  wliat  may  be  alleged  in  his  defense,  or 
not,  as  he  may  think  proper. 

Under  a  general  or  special  denial,  as  we  have  seen,'  no  evidence 
can  be  given  on  the  part  of  the  defendant,  except  such  as  tends 
directly  to  disprove  some  material  fact  controverted  in  the  com- 
plaint.    This  doctrine,  very  clearly  and  logically  laid  down  in  the 

I  Code,  ^  166.  *  Ante,  p.  472  et  seq.,  marg  p. 

«  2  R.  S.'  529,  §  42,  2  Edm.  St.  547. 


8EC.  III.J  STATEMENT   OF   NEW   MATTER.  583 

case  o^  Benedict  v.  Seymour,  cited  supra^  agrees  witli  most  of 
the  decisions  on  this  point  jnade  since  the  Code,  and  is  no  doubt 
entirely  correct.  In  the  same  case,  however,  the  question  was 
considered,  whether  it  is  admissible  to  set  forth  specially  any 
defense  which  may  be  given  in  evidence  under  such  a  traverse, 
and  the  conclusion  arrived  at  is,  that  every  special  defense  con- 
sisting of  matter  which  goes  to  disprove  any  material  allegation 
in   the   complaint,  is   defective,  and  must   be    stricken    out  on 

motion.*  Whether  this  rule  was  ever  strictly  applicable 
[*499]  to  the  theory  of  pleadings  under  the  Code,  *  or  not,  it 

seems  to  me  clearly  evident  that  since  the  late  amend- 
ments it  cannot  and  ought  not  to  be  rigidly  applied.  There  can 
certainly  be  no  reasonable  objection  to  allow  the  defendant,  with 
his  general  or  specific  denial,  to  set  forth  specially,  as  formerly  he 
might  do  with  the  general  issue,  either  by  notice  or  special  plea, 
such  defenses  as  duress,  statute  of  frauds,  illegality  of  considera- 
tion, payment,  or  any  other  defense  not  absolutely  inconsistent 
with  the  denial,  even  though  some  of  these  defenses  might 
properly  be  given  in  evidence  under  a  mere  traverse.  A  plea 
amounting  to  the  general  issue,  it  has  been  observed,  was  mere 
matter  of  form,  not  of  substance,  and  as  such,  therefore,  could  be 
reached  only  by  special  demurrer.  An  example  is  given  in  an 
action  of  trover,  where  the  defendant  pleads  that  the  plaintiff 
consigned  him  the  goods  to  sell,  which  he  sold  pursuant  to  the 
order  of  the  plaintiff';  this  was  held  bad  as  amounting  to  the 
general  issue ; '  but,  being  mere  matter  of  form,  it  could  not 
properly  be  reached  by  demurrer  under  the  Code.  The  plaintiff 
cannot  certainly,  in  any  sense,  be  said  to  be  "  aggrieved "  by 
such  a  defense,  if  it  be  matter  really  proper  to  be  proved  in  bar 
of  the  action.  In  such  case  the  answer  apprises  him  of  the  exact 
point  of  the  defense  set  up,  in  the  shape  of  new  matter.  As  the 
Code  now  stands,  he  is  not   recpiired  to  controvert   it   by  any 

reply,  but  the  matter  is  deemed  to  be  controverted,  and  the 
p500]  defendant  must  prove  it.     He  may,  therefore,  I  *  think, 

properly  allege  it  as  new  matter,  with  or  without  his 
general  or  specific  denial,  nor  should   such  a  defense  be   struck 

'  6  How.  Pr.  2!)8.  *  10  Johns.  289. 

«  6  How.  Pr.  307. 


684  THE   ANSWER.  [CH.  V. 

out  merely  because  it  amounts  to  the  general  issue.  These  v'iews 
are  fully  sustained  in  the  late  case  of  Hollenbeck  v.  Clow,^  in 
which  Justice  Hakris  held  an  answer  of  such  "  new  matter, 
constituting  a  defense^''  as  might  have  been  given  in  evidence 
under  a  general  denial,  to  be  good.  He  thought  the  test  on  the 
subject  was,  whether  the  matters  stated  in  the  answer  consti- 
tute a  defense  within  the  meaning  of  the  Code;  not  whether 
they  might  have  been  proved  under  some  other  form  of  pleading. 
I  have  already  had  occasion  to  consider  this  subject  in  a  previous 
part  of  this  chapter,"  and  especially  in  regard  to  the  pleading  of 
mitigating  circumstances  in  cases  of  libel  and  slander ;  ^  and  I 
have  endeavored  to  show  that  the  answer  of  the  Code,  in  all  cases, 
is  substantially  the  equitable  answer  when  used  as  a  pure  pleading^ 
and  not  as  a  mere  discovery  of  evidence^  and  that,  therefore,  the 
technical  rules,  governing  special  pleas  in  bar,  are  not  strictly 
applicable  to  it;  but  that  many  matters  of  partial  defense,  which 
could  not  before  have  been  the  subject  of  a  plea,  may^  if  the  party 
choose,  be  set  up  in  his  answer,  with  a  general  or  special  denial, 
precisely  as  he  might  have  done  before  under  a  notice 
[*501]  with  the  general  issue,*  and  precisely  as  it  is  *conceded  now 
that  he  may  set  up  the  defense  of  recoupment  as  a  partial 
defense  in  mitigation  of  damages.*  The  general  rule  testing  the 
sufficiency  of  an  answer  in  equity,  is  stated  by  the  chancellor  in 
Yan  Rensselaer  v.  Brice^  to  be,  "  that  if  the  matter  of  an  answer 
is  relevant,  that  is,  if  it  can  have  any  influence  whatever  in  the 
decision  of  the  suit,  either  as  to  the  siibject-matter  of  the  con- 
troversy^ the  particular  relief  to  he  given,  or  as  to  the  costs,  it  is 
not  impertinent."  An  answer  in  equity,  confining  itself  to  facts 
pertinent  in  opposition  to  the  case  made  by  the  complainant's  bill, 
was  not  irrelevant ;  but  if  it  traveled  out  of  the  bill  to  state  facts 
not  material  in  evidence,  or  scandalous,  or  otherwise  impei'tinent, 
it  would  be  corrected  by  expunging  such  matter  on  application  to 
the  court.''  And  the  notice  with  the  general  issue,  in  a  common- 
Jaw  action,  performed  a  substantially  similar  office. 

Within  tlicse  rules  it  was  said,  on  a  previous  page,*  that  matter 

'  9  How.  Pr.  293.  '  Willis  v.  Taggard,  6  How.  Pr.  433. 

'  Ante,  pp.  4o8,  et  seq.,  marg.  p.  *  4  Paige's  Cli.  177. 

^  Ante,  pp.  484,  et  seq.,  marg.  p.  '  Mitf.  Eq.  PI.  381. 

•*  Uoughton  v.  Townsend,  8  How.  Pr.  *  Ante,  pp.  486-489. 
443. 


SEC,  III.]  STATEMENT   OF   NEW   MATTER.  585 

in  mitigation  of  damages  in  libel  or  slander,  properly  admissible 
in  evidence,  might  be  set  up  in  an  answer  with  a  general  denial, 
whether  a  justification  was  pleaded  or  not.  Upon  similar  prin- 
ciples 1  should  saj,  if  it  were  an  original  question,  that  such  mat- 
ters might  be  properly  pleaded  with  a  general  denial  in  other 
actions  of  tort,  as  in  trespass  for  an  assault  to  the  person,   or 

in  an  action  for  breach  of  promise  of  marriage,  and 
p502]  *the   like.     There  have  been,  however,  adjudications  to 

the  contrary ;  and  the  courts,  in  some  instances,*  have 
exercised  their  discretion  (as  doubtless  they  have  the  power  to  do 
under  section  160),  by  striking  out  such  allegations  as  redundant 
and  irrelevant."  Some  of  the  eases,  indeed,  go  still  farther,  and 
hold  that  an  answer  to  a  comphiint  for  an  assault  and  battery  can- 
not first  deny  the  charge  and  then  plead  justification ;  as  in  the 
case  of  Schneider  v.  Schultz.,^  in  the  New  York  superior  court, 
and  Roe  v.  Bogers*  at  special  term  of  the  supreme  court.  And 
the  reason  given  in  the  latter  case   is,    that   such    answers   are 

wconsisteiit.  This,  however,  may  be  regarded  as  over- 
[*503]  raled  by  the  case  of  Lansingh  *v,  Parher^  in  the  same 

district,   in  which  Justice  Shankland,  after   consulting 
with  all  his  associates  of  that  district,  considered  such  an  answer 
proper ;  holding  the  rule  to  bo,  that  pleas  which  were  not  incon 
sistent  under  the  former  practice  of  the  courts  will  not  be  held 

'  Smith  V.  Waite,  7  How.  Pr.  227  ;  69,  to  be  pleaded ;  and  the  court,  Hau- 
Roscnthal  v.  Brush,  N.  Y.  Com.  Pleas,  Ris,  J.,  said,  that  facts,  which  it  would 
1  C.  R.  N.  S.  228.  It  is  worthy  of  re-  be  material  for  the  defendant  to  prove, 
mark,  however,  that  these  cases  were  though  they  may  not  constitute  a  coni- 
before  the  amendment  of  1852,  when  ^/c^g  c^^/ense,  may  remain  in  the  answer, 
the  answer  M'as  really  a  different  thing  "  The  plaintiff  ought  not  to  compiaia 
from  what  it  is  now.  See  ante,  marg.  p.  that  the  defendant  has  apprised  him 
488.  The  plaintiff  was  then  required  of  facts  upon  which  he  intends  to  rely 
to  reply  to  it  if  he  wished  to  controvert  in  mitigation  of  damages  if  not  in  dc- 
the  facts;  and  if  he  did  not  so  reply,  fense  on  the  trial."  The  action  was 
he  was  deemed  to  have  confessed  the  for  fraudulent  concealment  in  the  bale 
material  facts  alleged.  In  a  aworu  of  horses. 
answer,  therefore,  if  he  would  protect  •*  4  Sandf.  004. 
himself  from  an  admission  of  these  *  8  How.  Pr.  250. 
allegations,  he  must  put  in  a  sworn  ^  9  How.  Pr.  288.  The  answers  in 
denial.  Thus,  an  mwc  would  be  raised  that  case  were  :  1st.  A  general  denial, 
on  a  question  going  merely  to  the  2d.  That  plaintiff  committed  the  lirst 
amount  of  damages.  And,  this,  indef^d,  assault,  etc.  Sd.  That  he  was  in  de- 
is  the  reason  given  in  Smith  v.  Waite,  feudanfs  inn,  making  a  great  noise, 
for  striking  out  sucli  au  answer.  It  is  etc.,  and  the  defendants  recjuested  him 
Bubmitted  whether  the  reason  having  to  leave  ;  and  on  refusing,  they  gent 
cea.'-f-d,  the  rule  has  not  ceased  with  it.  ly  laid  their  hands  on  him  to  remove 

■^  Such  a  defense,  however,    was  al-  him. 
lovvt-d  in    Ilyinls   v.  (Iriswoid,   4  How. 


586  THE   ANSWER.  [CH.  V. 

inconsistent  as  answers  under  the  Code.'  And  in  Hackley  v. 
Ogmun^  at  a  general  term  in  the  same  district,  upon  similar 
grounds,  it  was  held  that,  in  an  answer  in  an  action  to  recover 
personal  property,  the  defendant  might  separately  deny  and 
justify. 

To  the  same  eiFect  is  the  decision  in  Corning  v.  Corning^  in 
the  court  of  appeals,  in  which  the  answer  to  a  complaint  for  assault 
and  battery  first  denied  the  statements  of  the  complaint,  and  then 
alleged  that  if  there  was  any  such  assault,  etc.,  it  was  purely  acci- 
dental; and  the  reply  denied  that  the  assault  was  accidental. 
This  was  held  to  raise  a  material  issue.  In  that  case,  also,  the 
answer  set  forth,  in  addition,  various  matters  in  mitigation  of 
damages,  M^hich,  having  been  put  in  issue,  such  issues  were  held 
by  the  court  iwimaterial^  upon  the  sole  ground  that  the 
[*504]  matter  charged  was  not  of  a  *  character  to  be  admitted  in 
evidence  to  mitigate  damages.  And,  although  the  court 
remarked  that  matter  in  mitigation,  if  otherwise  proper  as  evi- 
dence, could  be  admitted  under  an  answer  denying  the  trespass, 
yet,  it  is  not  said  that  such  matter  7iiay  not  also  be  pleaded  under 
the  Code.  The  case,  at  all  events,  is  in  point  to  show  that  a  denial 
of  the  assault,  and  an  excuse  for  committing  it,  may  be 
separately  pleaded  in  the  same  answer.^ 

But,  though  it  should  be  eventually  settled  that  a  party  may, 
if  he  thinks  fit,  plead  in  his  answer  the  facts  on  whicli  he  relies 
in  mitigation  or  abatement  of  damages,  such  matters,  I  think, 
should  always  be  connected  with  a  general  or  specific  denial,  or 
something  which  raises  a  ^naterial  issue  in  itself  proper  for  trial. 
Standing  alone  in  the  answer  such  matter  would  be  redund- 
ant or  irrelevant,  because  it  may  be  given  in  evidence,  without 
being  pleaded,  on  the  assessment  of  damages,^  and  the  opposite 

'  See  this  subject  discussed  in  a  sub-  volved  solely  the  construction  of  that 

sequent  part  of  this  cliapter,  under  the  section  of  tlu;   Code  which  relates  to 

head  of  WJiat  must  not  be  uMerjed  in  an  pleadin<y  by  the  defendant  in  an  action 

answer.  for  defamation,  yet  the  general  prin- 

-  10  How.  Pr.  44.  ciples  settled  by  the  decision  appear  to 

^  2  Seld.  97.  be  equally  applicable  to  other  cases. 

''  And  see  Bash  v.  Pro/^ncr,  1  Kern.  ^  An   allegation   in   a   coni])hiint   in 

347,  which  seems  to  me  to  settle  the  tre.'^jiass   to   the   person   or    property, 

question  in  favor  of  tlu^  riglit  of  a  de-  lib.'l,  and  similar  cases,  that  the  plain- 

fendant  to  plead  matters  in  mitigation  titf"  has  sustnined  damagi's  to  such  an 

f>i  iX-Amn^ps,^^  a.  partial  dffimsc,  m  all  amount,   is    the    allegation    of   a  fart, 

actions  of  tort.     Though  the  case  in-  which  is  the  legitimate  subject  of  a 


SEC.  III.]  STATEMENT    OF   NEW    MATTER.  587 

[*5(.)5]  party  is  also  aggrieved  by  it  because  it  puts  *him  to  the 
unneeessaiy  delay  anj  trouble  of  going  through  the  form 
of  a  trial  on  an  immaterial,  that  is,  an  undecisive  issue.  Such 
matter  is,  tlierefore,  irrelevant,  and  should  be  struck  out  within 
tlie  rule  laid  down  in  Lane  v.  GilberV  The  same  is  true  in  all 
cases  of  mere  damages,  which  tiie  party  has  the  right  to  offer  in 
evidence  on  the  assessment,  without  pleading  the  facts  in  miti- 
gation. 

Equitalle  defense  to  legal  cause  of  action.  —  It  was  a  question, 
before  the  late  amendments  of  the  Code,  whether  a  defendant  was 
at  bberty  to  interpose  a  purely  equitable  defense  to  a  legal  cause 
of  action.  Most  of  the  decisions,  j9/'(?  and  con. .^  on  this  subject 
have  already  been  cited,  and  it  is  unnecessary  to  refer  to  them 
again  in  this  place.  The  question  is  now  definitely  settled  by 
the  statute,  that  the  defendant  may  interpose  a  purely  equitable 
defense  to  a  legal  cause  of  action.  Pie  may  set  forth  as  many 
defenses  and  counter-claims  as  he  has,  whether  they  be  such  as 
have  been  heretofore  denominated  legal.,  or  equitahle,  or  hoth!' 
Tlie  defendant  may  also  have  positive,  or,  as  the  Code  denomi- 
nates it,  ajDirmative  relief,'  as,  for  example,  in  a  suit  to  have  a 
bond  and  mortgage  delivered  up  and  canceled,  he  may,  if  he 
make  out  a  sufticient  case,  have  an  affirmative  judgment  of  fore- 
closure ;  and,  therefore,  he  may,  if  he  choose,  set  up  in  his  answer 

any  matter  which  can,  in  any  event,  become  material  in 
[^506]  such  a  ^result.*    So  in  an  action  on  a  judgment  which  the 

defendant  wishes  to  impeach  for  fraud  (which,  heretofore, 
could  only  have  been  done  in  equity),  he  may  now  set  up  the 
facts  going  to  establish  the  fraud  as  a  full  defense  in  his  answer.' 
And  the  mortgagor  of  personal  property,  or  those  standing  in  his 
shoes,  can,  when  sued  for  damages  for  converting  the  property 
moi'tgaged,  set  up  his  equitable  right  to  redeem  ;  *  for  the  defend- 
ant can  now  avail  himself  of  any  equitable  defense  which  was 
formerly  available  in  chancery.     Or,  as  it  is  expressed  in  another 

traverse ;  and  a  general  denial  of  the  '  9  How.  Pr.  150. 

complaint,  it  seems  to  me. puts  in  issue  ^  Code,  ^  150. 

the  wliole  question  of  damages.     See,  ^  Code,  ^  274. 

al.so,   ixoHi'iithnl  v.   Brush,  1   Code  R.  *  Averill  v.  Taylor,  5  How.  Pr.  476. 

N.  S.  S'JR;  Srh"nnerhor>i  v.  Van  Allen,  ^  Dohson  v.  Pearce,  1  Duer,  142. 

18  P>arb.  2!t  [Gilbert  v.  Hounds,  14  How.  «  llinman  v.  Judson,  13  Barb.  G29. 


fb;8  THE  ANSWEE.  [CH.  V. 

case,'  to  a  claim  of  a  purely  legal  character,  any  defense,  whether 
legal  or  equitable,  may  now  be  interposed  in  the  same  action.  It 
is  no  longer  necessary  to  bring  a  suit  in  the  nature  of  a  suit  in 
equity  to  restrain  proceedings  in  an  action  in  the  nature  of  a  suit 
at  law.  Whatever  equities  may  exist  between  the  parties,  which 
should  prevent  a  recovery  by  the  plaintiff  of  his  legal  claim,  may 
now  be  set  up  as  a  defense  to  the  action  " 

In  the  dissenting  opinion  of  Foot,  J.,  in  Haire  v.  Baker^  in 
the  court  of  appeals,  it  is  said  that  a  defense  in  equity  to  an 
action  brought  to  enforce  a  strict  legal  right,  must,  under  the 
Code,  be  set  up  in  answer  to  the  action,  if  the  defendant  wishes 

to  avail  himself  of  it  at  all,  so  that  the  whole  controversy 
[*507]  *  between  the  parties  may  be  disposed  of  in  one  suit.    But 

the  majority  of  the  court  ruled  other\vise,  holding  that,  in 
an  action  to  recover  damages  for  breach  of  covenant  against 
incumbrances  in  a  deed,  a  defense  setting  np  that  the  incumbrance 
referred  to  was,  by  mistake,  omitted  to  be  excepted  from  the 
operation  of  the  deed,  and  looking  to  a  reformation  of  the  cove- 
nant, need  not  be  interposed.  It  was  admitted  that  an  equitable 
defense  of  such  a  nature  might  be  interposed  to  a  suit  on  the 
covenant  for  damages,  but  the  affirmative  relief  sought  in  the 
particular  case  —  the  reformation  of  the  deed  —  could  not  have 
been  attained,  and,  therefore,  it  was  not  a  necessary  defense ; 
and  though  an  action  was  pending  on  the  covenant,  the  defendant 
might  still  have  his  subsequent  action  for  its  reformation.*  [A 
defendaiit  is  not  bound  to  set  up  a  counter-claim,  but  may  do  so 
or  enforce  it  in  a  separate  action.*  If  an  action  be  pending  thereon 
and  it  be  also  pleaded  as  a  counter-claim,  the  party  will  be  bound 
to  elect  in  which  suit  he  will  proceed  thereon,  and  if  judgment  be 
recovered  in  a  suit  thereon  it  will  be  stricken  out  as  a  counier- 
claiin.^J 

'  Hunt  V.  Farmers'  Loan  and  Trust  v.  MrCluer,  5  Abb.  N.  S.  97,  3  Keves, 

Co.,  8  How.  Pr.  410.  318  ;  Mayor,  etc.,  v.  Wood,  4  Abb.  N.  S. 

"■  [Dobson  V.  Pearce,  12    N.  Y.   156 ;  332.] 

Shcphnn   v.  Uamilton,  2  Keyes,    804;  M  Sold.  363. 

Cythe  V.  Lafontain,  51  Barb.  186  ;  Van  "  [Gillespie  v.  Torrance,  25  N.  Y.  306, 

Valkenburf/h    v.    8t>ipplebein,    49    id.  affirming,  4  Bosw.  36  ;  Peck  y.  Minot,A 

99  ;  Carpenter  v.  Ottley,  2  Lans.  455  ;  Kob.  323  ;  Liemon  v.  Sehenck,  29  N.  Y. 

iMttin  V.  McCarty,  41  N.  Y.  107  ;  Peck  598,  affirming,  33  Barb.  9.] 

V.  Bvown,  2  Rob.  132;  Ilicksmlle  v.  *  i/«rm  v.  i/a»iwo?id,  18  How.  123-5. 
Long  Island,  etc.,  48  Barb.  355  ;  Parker 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  689 

[*508]  *  In  pleading  an  equitable  defense  to  a  legal  demand, 
as  well  as  an  equitable  cause  of  action,  it  has  been  said 
that  the  party  is  not  confined  to  the  same  strictness  of  statement 
as  in  other  cases,  but  that  the  equity  rules  apply,  in  the  main,  to 
one  class  of  cases,  and  the  common-law  rules  to  the  other.  What 
was  said  in  a  former  chapter  on  this  subject '  may  be  here  referred 
to  in  order  to  avoid  unnecessary  repetition.  I  have  assumed  that 
class  of  decisions  which  hold  that  there  is  no  such  distinction,  to 
be  correct,  and  that  the  Code  has  really  provided  an  uniformity 
of  pleading^  as  well  as  practice  in  all  cases.  This  applies  to  the 
defendant's  answer  of  new  matter,  as  well  as  to  the  statement  by 
the  plaintifl"  of  his  cause  of  action ;  and,  therefore,  in  strictness, 
perhaps,  a  defendant  would  have  no  right  to  set  up  in  an  answer 
constituting  even  an  equitable  defense,  any  thing  except  mate- 
rial facts^  that  is,  issuahle  facts  capahle  of  trial^  and  which, 
on  being  controverted,  will  form  an  issue  or  issues  sufficient  to 
admit  all  proper  evidence  of  the  facts  necessary  to  sustain  the 
defense. 

But,  as  has  been  already  remarked,  under  the  practice  estab- 
lished by  the  amendments  of  the  Code,  that  new  matter  (unless  a 
counter-claim)  need  not  be  denied  by  the  plaintiff,  and  is  not 
deemed  admitted  on  the  trial,  I  see  no  good  reason  why 
[*509]  the  rule  should  be  always  strictly  enforced  in  *  case  of 
the  defendant's  answer,  except  when  a  counter-claim  is 
pleaded,"  so  long  as  \X\e  facts  stated  are  pertinent  to  the  case,  and 
may  he  proved  in  support  of  the  issue,  even  though  not  directly 
issuahle  facts  capable  of  trial.  The  defendant  may,  if  he  choose, 
it  is  presumed,  in  setting  up  an  equitable  as  well  as  a  legal 
answer,  state  such  facts  as  cannot  either  prejudice  or  "  aggrieve '' 
the  phiintilF,  or  mislead  him  in  his  proof  or  incumber  the  record, 
or  embarrass  the  proceedings.  It,  under  the  equity  practice,  a 
plaintiff  had  a  right  to  know  not  only  the  facts  and  circumstances 
of  the  case  relied  on  by  the  defendant,  but  the  use  designed  to  be 
made  of  them,  it  would  seem  that  he  should  still  have  that  riglit, 
particularly  as  he  admits  nothing  of  the  facts  stated  by  omitting 
to  reply,  and  the  answer,  therefore,  cannot  be  used  in  any  way  as 
an  examination  or  discovery  of  evidence.     At  all  events,  as  was 

'  Chap.  1,  §  4,  and  cases  there  cited.        '  See  next  section. 


690  *  THE  ANSWEE.  [CH.  V. 

said  in  Hynds  v,  Oriswold^  he  ought  not  to  complain  if  the 
defendant  gives  him  that  information. 

3.  What  facts  must  not  he  alleged.  —  The  right,  liowever, 
should  at  least  be  limited  by  the  rule  indicated  in  Wooden  v, 
Wa^ffie^  so  as  not  to  suffer  the  defendant  to  incumber  the  record 
with  details  which  have  no  other  bearing  upon  the  case  than  to 
establish  some  other  fact  affecting  the  equitable  right  in  contro- 
versy. Even  where  the  opposite  party  may  not  be  "  aggrieved," 
the  court  has  an  interest  in  disincumbering  the  record  of 
[*510]  irrelevant  *  and  redundant  matter,  and  in  reforming 
abuses  in  pleading. 

Irreleviant  and  redundant  matter  in  an  answer,  as  in  a  com- 
plaint, may  be  struck  out  on  motion  of  any  person  aggrieved 
thereby.  And  though,  perhaps,  for  the  reasons  already  stated. 
the  defendant  (unless  his  answer  sets  up  a  counter  claim)  should 
not  in  general  be  held  to  so  great  a  strictness  as  the  plaintiff  in 
his  complaint,  yet  it  is  undoubtedly  a  general  rule  that  the  answer 
should  set  up  only  the  facts  constituting  the  ground  of  defense, 
and  no  more.  The  motion  to  strike  out  scandalous  and  imperti- 
nent matter  is  entirely  similar  to  an  exception  for  impertinence, 
under  the  equity  system.'  Scandalous  and  impertinent  matter, 
even  if  not  included  under  the  head  of  irrelevant  and  redundant 
matter,  as  stated  in  the  Code,  may  still  be  struck  out  of  the  plead- 
ings. This  doctrine,  applied  in  the  case  of  Carpenter  v.  West," 
to  scandalous  and  impertinent  matter  in  a  complaint,  may  be  also 
safely  applied  to  similar  matter  in  an  answer. 

Facts,  also,  and  not  the  mere  evidence  of  facts,  must  be  stated 
as  new  matter.  A  statement  of  evidence,  instead  of  the  facts, 
can  answer  no  possible  good  end,  and  is  in  itself  a  prolixity  and 
redundance  which  the  court  will  correct. 

So,  also,  conclusions  of  law,  and  matters  hypothetical ly 
P511]  stated,  and,  in  general,  immaterial  matter  *of  every  de- 
scription, as  where,  in  a  partition  suit,  the  answer  contained 
an  allegation  that  the  plaintiff  had  unreasonably  refused  to  make 
partition  by  deed,  such  allegation  was  struck  out  as  irrelevant  and 

'  4  How.  Pr.  69.  Pr.  44 ;   [see  People  v.  Alhany  &  S>isq 

«  G  How.  Pr.  156.  R.  R.,  57  Barb.  204.] 

*  Esmond  v.  Van  Benschoten,  5  How.        *  5  How.  Pr.  53 ;  see,  also,  6  How.  68 

id.  353. 


SEC.  III.]  STATEMENT   OF   NEW    MATTER,  591 

redundant,  and  as  matter  wliicli  could  have  no  possible  influence 
upon  the  action,  and  which,  if  replied  to,  would  raise  an  imma- 
terial issue  and  tend  to  embarrass  the  proceedings.'  And  where 
there  are  several  defendants,  an  answer  bj  one  of  them,  which  is 
immaterial  as  between  him  and  the  plaintifl:',  but  is  intended  to 
form  a  case  for  adjudication  of  equities  between  hiua  and  a  co- 
defendant,  is  immaterial  on  the  plaintiff's  right  to  recover,  and  has 
been  struck  out  on  motion.* 

Immaterial  matter,  inserted  in  an  answer  that  is  mixed  np  with 
an  otherwise  sufficient  answer,  cannot  be  demm-red  to.  The 
objection  must  be  taken  by  motion  to  strike  it  out  as  irrelevant 
and  redundant.'  The  nature  of  such  irrelevant  and  redundant 
matter  as  may  be  struck  out  on  motion  is  well  defined  by  Justice 
WiLLAED,  in  Harlow  v.  Hamilton.^  It  "may  exist  in  a  plead- 
ing," he  says,  "  which  contains  a  good  cause  of  action  or  defense. 
It  generally  arises  from  not  distinguishing  between  plead- 
[*512]  ings  and  evidence.  Pleading  is  the  *  logical  statement 
of  the  facts  which  constitute  the  cause  of  action  or  the 
defense,  etc.,  etc.  *  *  *  "yXxq  irrelevant  or  redundant 
matter,  which  the  Code  authorizes  to  be  stricken  out,  is  such  as 
implies  that  the  pleading  contains  other  matter  which  is  material. 
If  the  whole  answer  is  bad,  the  proper  remedy  is  to  demur,  or  to 
move,  under  section  152,  to  strike  it  out  as  an  irrelevant  defense  ; 
or,  if  it  be  palpably  frivolous,  to  move  for  judgment,  under  section 
247,  and,  perhaps,  in  a  gross  case,  to  disregard  it  altogether,  and 
to  take  judgment  as  if  no  answer  was  put  in.  Matter  is  said  to 
be  irrelevant  when  no  material  issue  can  be  framed  upon  it.  It 
is  redundant  when  the  pleading  expresses  the  same  meaning  after 
the  matter  is  expunged  as  it  did  before."  A  motion  to  strike  out 
irrelevant  and  redundant  matter,  it  was  said  in  the  same  case,  M'as 
not  intended  as  a  substitute  for  a  demurrer.  It  takes  the  place 
of  exceptions  for  iinpertinence,  under  the  chancery  practice  ;  and 
precisely  the  same  thing  was  held  in  the  case  of  Rensselaer  and 

•  McGown  v.  Morrow,  3  Code  R.  9.  See  Moak's  note  to  Clarke's  Cli.  8,  ed. 

^  Woudwovthv.  Bellows  (t  al.,'i:  How.  18(J9;    Bank  of  Toronto  v.  IluiUer,  4 

Pr.   24   [Smart   v.    Bmnett,   3    Keyes,  Bosw.  6-i(j,  2  Barb.  Cli.  Pr.,  1st  cd.,  1«0.] 
241 ;  Farmem'  Loan,  etc.,  v.  Srynioiw,        ^  Id. ;  Smith  v.  Qreeiiin.'H  i^iindt.  Tl)2; 

!J   Paige,  539;  iUUlcr  v.  CVr.se,  Clarke's  Wats.>n  y.  Ilus.son,  \  Diier,  243;   White 

Ch.  39.3 ;  Stephens  v.  Hall,  2  Hob.  674 ;  v.   Kidcl,  4  How.  Pr.   08  ;    Nichols   v 

Kay  V.  Whittaker,  44  N.  Y.  5G5  ;  Equity  Jim  s,  6  id.  35.5. 
Draughtsman  (4th  Am.  ed.)  82.],  note.         ^  0  How.  Pr.  475. 


692  *  THE   ANSWER.  [CH.  V. 

Washington  Plcmk  Road  Co.  v.  Wetsel^  relative  to  striking  out 
allegations  from  an  answer,  namely,  that  any  matter  which,  upon 
exceptions  for  impertinenGe,  under  the  chancery  practice,  would 
be  struck  out  as  unnecessary  and  impertinent,  should,  upon  motion, 
be  struck  out  from  the  answer  under  the  Code  as  irrelevant  and 
redundant.  Upon  the  same  principle,  in  Stewart  v.  £oiv- 
[*513J  ton,^  mere  conclusions  *  of  law,  and  matters  wholly  imma- 
terial and  unnecessary  to  a  proper  decision  of  the  case, 
were  struck  out  as  irrelevant  and  redundant. 

This  will  furnish  a  correct,  definite,  and  safe  rule  of  practice  in 
all  cases.  Under  the  equity  practice,  new  matter  in  the  answer 
not  responsive  to  the  bill,  which  was  wholly  irrelevant  and  formed 
no  sufficient  ground  of  defense,  might  be  excepted  to  for  imper- 
tinence ;  or  the  objection  might  be  raised  at  the  hearing,'  So, 
also,  exceptions  might  be  taken  to  an  answer  for  insufficiency j 
that  is,  where  some  material  allegation,  charge  or  interrogatory  in 
the  bill  was  not  fully  an&wered."  This  was  applicable  only  to  the 
answer  when  called  for  to  be  used  as  the  yq\\\c\q  oi  discovery ,  and, 
of  course,  has  no  application  to  the  answer  of  the  Code.  Tlie 
objection  to  irrelevant  and  redundant  matter  is  analogous  to  the 
exceptions  for  impertinence  in  chancery ;  not  for  insufficiency. 

The  equity  rules,  therefore,  relative  to  expunging  impertinent 
and  scandalous  matter  from  an  answer,  may  be  applied  to  our 
present  system  of  pleadings.  In  Woods  v.  Morrell^  the  Chan- 
cellor says  the  best  rule  to  ascertain  whether  matter  be  imperti- 
nent is,  to  see  whether  the  subject  of  the  allegation  could 
[*514]  be  put  in  issue,  or  he  given  hi  evidence  hetuoeen  ^tJie 
parties.*^  Thus,  long  recitals,  stories,  conversations,  and 
insinuations  tending  to  scandal,  are  impertinent.  So,  facts  not 
material  to  the  decision  are  impertinent ;  and,  if  reproachful, 
scandalous.     Statements  in  an  answer,  merely  tending  to  discredit 

'  How.  Pr.  68.  RI8,  in  Rens.  and  Wash.  Plank  Road 

«  6  How.  Pr.  71.  Co.  v.  Wetsel,  supra  (6   How.   68),   in 

*  Stafford  v.  Brown,  4  Paige's  Ch.  which  he  considers  the  test  to  be 
88.  "  whellier  the  matter  objected  to  can, 

^Id;  Story's  Eq.  PI.,  ^§  863,  864.  in  any  way,  be  made  tlie   subject,  or 

*  1  .Johns.  Ch.  103.  See,  also.  Hood  form  apart  of  a  materinl  issue  in  the 
V.  In7nan,  A  id.  437;  Kings  v.  Sea  Ins.  nction."  This  was  before  the  aniend- 
Uc,  26  Wend.  63.  ment  of  1853,  and  befoV«   the  answer 

^  This  is  laying  down  rather  a  broader  (as  I  have  already  attempted  to  s-slio-.v) 
rule  than  that  stated  by  Justice  Har-     had  been  made  so  nearly  analogous,  in 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  *  533 

a  probable  witness  for  the  plaintiff',  are  impertinent.'  So,  also, 
mere  repetition  is  impertinent,  and  a  detail  of  injmaterial  circum- 
stances attending  the  main  fact ;  and  where  pertinent  and  imperti- 
nent matter  are  inextricably  blended,  the  whole  maj  be  rejected." 
But,  if  expunging  the  matter  excepted  to  will  make  the  clause 
senseless  or  untrue,  the  exception  will  be  overrruled.'  And  an 
exception  to  matter  partly  pertinent  and  responsive  must  be  over- 
ruled.'*  And  if  the  matter  of  an  answer  can  have  any  influence 
whatever  in  the  decision  of  the  suit,  either  as  to  the  subject-matter 
of  the  controversy,  the  relief,  or  the  costs,  it  is  relevant,  and  not 

impertinent.* 
[-515]       *From  the  foregoing  considerations  it  seems  evident, 

also,  that  the  irrelevant  and  redundant  matter  which  may 
be  struck  from  the  answer  under  section  160  is  not  such  matter  as 
purports  of  itself  to  constitute  an  entire  and  separate  defense,  but 
only  such  matter  as  is  improperly  mixed  up  or  incorporated  with 
matters  which  otherwise  would  have  been  correctly  pleaded.  And, 
under  the  earlier  decisions,  if  the  objection  for  irrelevancy  went 
to  the  whole  pleading,  or  separate  defense,  it  was  thought  to  be  a 
question  which  must  be  raised  by  demurrer i  but  if  the  objection 
did  not  go  to  the  whole  ground  of  defense,  but  was  partial  merely, 
a  motion  under  this  section  was  the  remedy ;  *  and  this  was  pre- 
cisely the  distinction  taken  by  Justice  Willard  in  the  case  of 
Harlow  v.  Hamilton,  sujpra^  and  in  some  other  similar  cases. 

It  is  to  be  observed,  however,  that  such  a  distinction  no  longer 
exists  in  practice;  for  section  152,  as  last  amended,  authorizes 
the  court  on  motion  to  strike  out  sham  and  irrelevant  answers 
and  defenses.  The  whole  of  an  irrelevant  defense,  therefore,  as 
well  as  immaterial  matter  mixed  up  with  an  otherwise  good 
defense,  may  now  be  struck  out  for  irrelevancy.  If  the  objection 
be  to  a  matter  pleaded  as  part  of  the  statement   of  a   defense, 

all  respects,  to  the  answer  in  equity.  *  4  Paige,  383,  6  id.  288,  id.  239. 

If  I  am  correct,  in  the  view  heretofore  ^  11  Paige,  15,  id.  454. 

taken  of  the  subject,  the  above  rule,  ^   Van  Rensselaer  v.  Brice,  4  Paige, 

laid  down  by  the  chancellor,  furnishes,  174. 

under   a   liberal    construction   of   the  '^  Fabricotti  v.  Lannitz,'^  ^AnAi.lA^; 

Code,  exactly  the  rule  to  test  whether  Scovelly.  Howell,  2  Code  li.  66  ;  Esmond 

allegations  "in  an  answer    should  be  v.    Van  Benschoten,  5  How.  Pr.    44 ; 

Btruck.   out    as  redundant  and   irrele-  Nichols   v.  Jones,  6  id.  355,  and  other 

vant.  cases  cited,  supra. 

'  Morton  v.  Woods,  ,5  Paige's  Ch.  260.  ■"  Ante,  511,  marg.  p. 

«Id. 

75 


694  THE  AISTSWER.  [CH.  V. 

it  is  analogous  to  the  chancery  exception  for  imjperti- 
[*516]  nence  I  *if  it  be  to  the  statement  of  a  defense  as  a  wJiole, 
it  is,  as  was  very  properly  said  in  Rensselaer  and  Wash- 
ington Plank  Road  Co.  v.  'Wetsel^  analogous  to  a  demurrer  and 
should  be  decided  upon  the  same  principles ;  or,  if  the  plaintiff 
choose,  instead  of  moving  to  strike  out  such  defense,  he  may  take 
the  objection  directly  by  demurrer.  This  subject,  however,  will 
be  considered  more  fully  in  the  subsequent  section  of  this  chapter 
which  treats  of  sham,  irrelevant  and  frivolous  defenses."^ 

The  statement  of  new  matter  must  be,  by  the  Code,  not  only 
such  as  constitutes  a  defense,  but  it  must  be  in  ordinary  and  concise 
la/nguage,  without  repetition^  A  violation  of  either  of  these  requi- 
sites' is  an  abuse  which  will  be  corrected  by  the  court  on  motion. 

Under  these  provisions,  in  Knowles  v.  Gee*  Justice  Selden 
struck  out  a  large  portion  of  an  answer  embracing  the  details  of 
evidence  relied  on  to  sustain  a  charge  of  fraud.  The  complaint 
was  for  trespass  in  cutting  and  carrying  away  grain;  and  the 
answer,  setting  up  that  the  plaintiff's  deed  of  the  land  was  obtained 
by  fraud,  went  into  a  history  of  the  transactions  between  the 
parties,  with  the  circumstances  in  detail  which  led  to  the  deliv- 
ery of  the  deed,  extending  to  upward  of  sixty  folios.* 
[*5i7]  *Though  the  cause  of  action  or  defense,  it  was  said,  must 
be  stated  fully  and  clearly,  and  general  pleading  is  no 
longer  allowed,  yet  facts  onh'-,  and  not  the  mere  evidence  of  facts, 
should  be  stated.' 

The  facts  must  also  be  stated,  not  only  concisely,  but  without 
repetition,  and  if  not  so  stated  the  court  will  correct  the  abuse. 
Thus,  if  the  defendant  undertake,  under  the  pretense  of  setting 
forth  several  separate  defenses,  to  set  forth  the  same  defense  in 
different  forms,  the  court  will,  within  the  principle  of  Stockhridge 
Iron  Co.  V.  Mellen^  and  Sipperly  v.  Troy  and  Boston  R.  R.  Co., 

'  6  How.  Pr.  68.  of  26  folios  to  stand,  under  similar  cir- 

*  Post,  §  6.  cumstancea.     Burget  v.  Bitsell,  5  How. 

*  Code,  §  149.  Pr.  192.     See  remarks  on  this  case  on  a 

*  8  Barb.'  S.  C.  300.  preceding  page. 

*  This  is  similar  to  the  recent  case        '  5  How.  Pr.  439. 

of  Wooden  v.   Strew,  10  How.  48,   in  ^  9  How.  Pr.  83.    [SJieldon  v.  Adamn, 

which  precisely  the  same  rule  was  ap-  27  How.  182  ;  18  Abb.  405,  41  Barb.  "i4  ; 

plied  in  regard  to  the  manner  of  stating  Fern  v.   Vanderbilt, '[S  Abb.  72;  Hill- 

fraudulent  allegations  in  a  complaint,  man  v.  Hillman,  14  How.  56.] 

*  Jtistice  Wklles  allowed  an  answer 


aEC.  III.]  STATEMENT   OF  NEW   MATTER.  595 

strike  ont  all  but  one,  witli  costs.  This  also  is  borrowed  from 
the  practice  in  equity;  for,  under  that  practice,  repetitions  of 
substantially  the  same  allegations  in  the  bill  or  answer  were 
regarded  as  impertinent,  and  might  be  rejected  on  exceptions.* 

What  the  Code  means  by  "  ordinary "  language,  it  would  be, 
perhaps,  hazardous  to  say.     "A  complaint,"  says  Justice  Dues 
(and  the  language,  it  is  presumed,  applies  equally  to  the  answer), 
"  must,  in  all  cases,  be  so  framed  and  expressed  as  to  convey  to  the 
mind  of  the  defendant  full  information  of  the  facts  which  are 
relied  on  as  the  ground  of  the  action  ;  and  in  judging  of  its  mean- 
ing, the  words  used  are  to  be  understood  in  their  ordi- 
\_^h\^']  narjj  and  pojmlar  "^^ sense.     *     *     *     *     A  ^?«m  state- 
ment is  one  that  may  be  understood,  not  merely  by  law- 
yers, but  by  all  who  are  suiBciently  acquainted  with  the  language  in 
which  it  is  written." '    It  is  presumed  that  terms  of  art,  professional 
expressions,  and  generally  all  words  of  good  standing  in  the  Eng- 
lish language  may  still  be  used ;  and  it  is  very  doubtful  whether 
any  court  would  descend  so  far  as  to  criticise  the  language  of  a 
pleading  by  striking  out  an  ordinary  Latin  word,  or  law  French 
term,  which  has  been  in  use  among  pleaders  for  centuries  past, 
unless,  indeed,  the  party  objecting  should  show   ignorance  on 
affidavit,  or  otherwise  prove  himself  "  aggrieved  "  to  the  satisfac- 
tion of  the  court.    A  demurrer  to  the  abbreviation  vs.  of  the  Latin 
word  versus,  in  the  title  of  the  complaint,  has  been  very  properly 
overruled  as  frivolous. 

Inconsistent  answers  are  not  countenanced  under  the  Code  to  a 
greater  extent,  it  would  seem,  than  they  were  under  the  old  equity 
system.  At  common  law  a  defendant  could  plead  only  one  plea ; 
but  by  statute  he  might  plead  as  many  separate  matters  as  he 
should  think  necessary  to  his  defense,  subject  to  the  power  of  the 
court  to  compel  him  to  elect  by  which  plea  he  would  abide, 
in  cases  where  he  should  plead  inconsistent  pleas.'  A  defendant 
could  not  deny  the  execution  of  a  deed,  or  plead  the  general 
[*519]  issue  in  assumpsit  and  also  a  tender.*  Nor,  in  *trespass, 
could  he  plead  at  the  same  time  the  general  issue,  alien 
enemy,  and  a  justification.'     And  where,  in  an  action  of  debt  on 

^  Norton  \.  TFoo(Zs,  5Paige,  560.  M  Term  R.  190,  id.   27,    4  Taunt, 

*  Mann  v.  Morewood,  5  Sandf.  5G4.        459. 

*  2  R.  S.  352,  §  9  ;  2  Edm.  Stat.  364.        *  12  East.  306. 


596  THE  ANSWER.  [CH.  V. 

bond,  tlie  defendant  pleaded  payment  before  the  day,  and  pay- 
ment at  the  day,  the  court  ordered  the  first  plea  to  be  struck  out. 
l^ut  with  the  general  issue  in  assumpsit,  he  might  plead  infancy, 
or  the  statute  of  limitations,  or  discharge  by  bankruptcy ;  and  in 
trespass  to  lands  he  might,  with  the  plea  of  not  guilty,  also  plead 
title  in  himself,  or  a  third  person,  or  justification," 

In  equity,  a  defendant  might  also  set  up  by  answer  as  many 
defenses  as  he  might  have,  but  not  inconsistent  defenses.'  In  a 
verified  answer,  it  was  held  that  he  could  not  set  up  two  defenses 
that  cannot  both  be  true  in  fact.*  He  might  deny  the  truth  of 
the  allegations  of  the  bill,  and  set  up  any  other  matters  not  wholly 
inconsistent  with  his  denial  on  a  full  or  partial  defense.*  And 
where,  from  redundant  expressions  or  other  verbal  inaccuracy,  a 
defense  had  been  rendered  inconsistent,  when  it  was  evidently 
not  intended  to  be  so,  the  court  would  either  reject  the  redundant 
expressions  as  surplusage,  or  direct  them  to  be  struck  out.*  This 
may  now  be  obtained  by  motion  to  the  court  to  render  the  plead- 
ing definite  by  amendment. 
[*520J  *  In  Boyce  v.  Brown'  it  was  held  that,  under  the 
Code,  the  defendant  could  not  plead  inconsistent  defenses. 
Thus,  it  was  said  that  in  trespass  he  could  not,  as  under  the  old 
practice,  plead  a  general  denial  and  a  justification  at  the  same 
time,  as  both  could  not  be  true.  He  should  either  deny  the 
trespass  altogether,  or  confess  it  and  justify,  or  avoid  the  act. 
Judgment  was  given  for  the  plaintifl?  in  that  case,  not  for  the 
insufliciency  of  the  answer,  as  it  contained  some  facts  which,  if 
properly  alleged,  would  have  been  a  defense,  but  because  the 
answer  was  not  drawn  in  conformity  with  the  Code,  and  the 
plaintifi',  as  the  Code  then  stood,  was  not  allowed  to  demur.  On 
appeal,  in  the  same  case,  the  judgment  was  affirmed.'' 

A  similar  doctrine  has  been  laid  down  in  some  other  cases. 
Thus,  in  Schneider  v.  Schultz^  in  the  New  York  superior  court, 
it  was  held  that,  in  an  action  for  assault  and  battery,  the  defendant 
could  not  deny  the  charge  and  then  set  up  a  justification.     And 

'  1  Johns.  Cas.  152.  *  3  How.  Pr.  391,  at  special  term,  per 

'  Graliam's  Pr.  245.  Willard,  J. 

«  1  Barb.  Ch.  Pr.  138.  ''7  Barb.  S.  C.  81. 

■*  Ilopper  X.  Ilopper,  11  Paige,  46,  *  3  Sandf.  664  ;    see,  also,  Potter  X 

»  1  Barb.  Cli.  Pr.  138.  McCready,  1  C,  R.,  N.  S.  88. 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  597 

tlie  same  rule  was  adopted  by  Justice  Crippen,  in  Roe  v.  Rodgei's^ 
at  a  special  term  of  the  supreme  court.  And  in  Arnold  v.  Dimon* 
it  was  held  that  a  defendant  cannot  set  up  two  defenses  not  con- 
sistent with  eacli  other,  one  of  which  from  its  nature 
[*521]  must  be  within  his  personal  knowledge,  *as  a  carrier,  to 
answer,  1st,  that  he  .was  not  the  owner  of  the  vessel,  and, 
2d,  that  the  property  shipj)ed  was  delivered  to  the  plaintiff. 

Later  cases,  however,  manifest  a  strong  disinclination  to  follow 
these  rules.  Thus,  in  Stiles  v.  Cwnstock^  Justice  Shankland 
denied  the  existence  of  any  rule  requiring  a  defendant  to  plead 
consistent  defenses.  So  in  Ostroni  v.  Bixby*  Justice  Bacon  con- 
sidered the  practice  of  striking  out  an  inconsistent  answer  as 
applicable  only  to  a  case  where  one  of  the  answers  was  shown  or 
conceded  to  be  talse.  In  Buhler  v.  Weiitworth^  the  doctrine  of 
compelling  the  defendant  to  elect  between  inconsistent  defenses 
was  indirectly  disapproved,  and  in  Lansing  v.  Parker  *  the  cor- 
rect rule  was  held  to  be  that  answers  which  were  not  inconsistent, 
under  the  former  practice,  will  not  be  held  inconsistent  under  the 
Code,  as  a  general  denial,  in  assault  and  battery,  with  a  separate 
answer  that  plaintiff  committed  the  first  assault,  and  a  further 
answer  of  molUter  manus  imposuit^^  thus  directly  disapproving 
tlie  cases  of  Schneider  v.  Shtdts  and  Roe  v.  Rogers,  supra.  These 
cases,  as  well  as  the  case  of  Arnold  v.  Dimon,  supra,  were  also 
disapproved  in  the  still  later  case  of  Hackley  v.  Ogmun,^ 
[*522]  at  a  general  term  in  the  same  district,  *  in  which  answers 
of  general  denial,  and  also  of  justification,  in  an  action 
to  recover  possession  of  personal  property,  were  held  not  incon- 
sistent. 

In  Ilallenhech  v.  Glow '  the  question  of  inconsistent  defenses  is 
very  carefully,  and,  it  would  seem,  very  accurately  considered,  and 
the  conclusion  is  reached  that,  when  the  court  assumes  to  compel 
the  defendant  to  elect  between  inconsistent  defenses,  it  must  do 
so  on  the  ground  that  from  the  very  nature  of  the  case  it  is  impos- 
sible that  the  defendant  can  have  two  such  defenses ;  in  other 
words,  as  the  rule  is  stated  by  the  court,  that  "  the  power  of  the 

«  8  How.  Pr.  350.  e  9  How.  Pr.  288,  Gen.  T.,  Gth  Dist. 

«  4  Sandf.  080,  N.  Y.  Superior  Ct,  '  See,  also.  Anonymous,  1  Code,  134. 

»  9  How.'Pr.  48.  8  jq  How.  Pr.  44. 

••  9  How.  Pr.  57.  s  9  How.  Pr.  289. 
«  9  How.  Pr.  282,  Gen.  T.,  1st  Dist. 

75 


598  THE  ANSWER.  [CH.  V. 

court  to  require  a  defendaut  to  elect  betweeu  defenses  alleged  to 
be  inconsistent  should  be  limited  to  cases  where  the  several 
defenses  contain  matters  so  inconsistent  that  the  proof  of  one 
defense  would  necessarilt/  disprove  the  other." '  This  brings 
us  back  exactly  to  the  equity  rule  as  laid  down  by  the  chan- 
cellor in  Hopper  v.  Hopper^  cited  with  approbation  in  this  same 
case,  and  which  seems  in  all  respects  a  just  and  correct  expo- 
sition of  the  practice  under  the  Code,  namely,  that  a  defendant 
"  cannot  set  up  two  defenses  which  are  so  inconsistent  with  each 
other,  that  if  the  matters  constituting  one  defense  are  truly  stated 
the  matters  upon  which  the  other  defense  is  attempted  to  be 
[*523]  based  must  necessarily  be  untrue  in  point  of  fact.  *  But 
the  defendant  may  deny  the  allegations  upon  which  the 
plaintiff's  title  to  relief  is  founded,  and  may  at  the  same  time  set 
up,  in  his  answer,  any  other  matters  not  wholly  inconsistent  with 
such  denial,  as  a  distinct  or  separate  defense  to  the  claim  for  relief 
made  by  the  bill,  or  some  part  thereof."  It  seems  manifest,  from 
this,  that  defenses  are  not  inconsistent  when  both,  or  all  of  them, 
rrmy  be  true,  however  different  in  their  nature  they  may  be. 
Thus,  in  Buddington  v.  Davis^  it  was  said  that,  while  a  condi- 
tional or  de  bene  esse  defense  could  not  be  sustained,  as  in  an 
action  for  libel,  if  the  defendant  should  set  up  that,  if  the  same 
was  published  it  was  true  or  was  privileged,  yet,  that  in  such 
action,  the  defendant  might  separately  deny  and  justify,  that  is, 
he  might  deny  all  the  allegations  of  the  complaint,  and  then,  by 
a  separate  statement  in  the  same  answer,  allege  the  truth  of  the 
publication;  and  again,  by  another  separate  statement,  aver  that 
the  publication  was  privileged.  All  these  several  defenses  might 
be  true,  and  proof  of  one  would  defeat  the  action.  So,  also,  in 
trespass,  or  assault  and  battery,  or  other  actions  for  wrong,  he  may 
both  deny  and  justify  within  the  rule  laid  down  in  Hackley  v. 
Ogmun,  and  other  cases  supra.* 
"When  inconsistent  defenses  are  set  up,  the  defect  is  properly  to 
be  reached  by  motion  to  strike  out  one  of  the  defenses,  in 
[*524]  which  case,  as  under  the  old  *  practice,  the  court  will 

'  See,  also,  Otis  v.  Ross,  8  How.  Pr.  discussed  and  authorities  cited  in  libel 

194.  and  slander  cases,  ante,  pp.  483,  484. 
''  11  Paige's  Ch.  46.  ■•  See  ante,  marg.  p.  483,  and  cases 

*  6  How.  Pr.  401.     See,  also,  subject  there  cited. 


SEC.  III.]  STATEMENT   OF   NEW   MATTER.  599 

either  strike  out  the  defense  or  compel  the  defendant  to  elect  by 

which  he  will  abide.'  n.n        i    •  a 

4    What  need  oiot  be  stated  in  the  answer.  -  The  rule  m  regard 
to  what  matters  may  be  given  in  evidence  nnder  a  general  or 
specific  denial  has  already  been  considered,  and  it  is  nnnecessary 
i4ther  to  discuss  the  subject  in  this  place.    The  cases  in  which  it 
has  been  held  that  mitigating  circumstances  may  be  pleaded  m  the 
answer  or  not,  as  the  defendant  chooses,  have  also  been  cited,      it 
seems,  however,  in  a  great  measure,  discretionary  with  the  court 
whether,  in  such  cases,  matters  which  may  properly  be  given  m 
evidence  under  a  denial  shall  be  allowed  to  stand  in  the  answer  or 
not   and  it  is,  therefore,  always  better  not  to  plead  them._ 

In  Wies  and  wife  v.  Fanning,'^  it  was  held  to  be  entirely  nn- 
necessary for  the  defendant,  in  his  answer,  to  assert  the  converse 
of  a  proposition  which  the  plaintiff  must  establish  athrmatively 
before  he  can  recover,  and  such  matter  was  accordingly  struck  out 
as  redundant;  nor  in  an  answer  under  the  Code  is  it  necessary  or 
proper  to  set  up  any  prayer  for  relief,  except  affirmative  rehef  be 
asked  on  a  case  presented  by  way  of  counter-claim ;    nor  is  it 
necessary,  in  an  answer  which  contains  tacts  showing  that 
r*5251  the   plaintiff  ought  not   to   recover,  to   *  accompany  it 
with  the  reason,  the  intent  to  rely  upon  it  is  a  necessary 

inference.*  . 

In  an  answer,  as  well  as  in  a  complaint,  it  is  nnnecessary  to 
state  matter  of   which  the  court   takes  notice  ex-officio ;    or  to 
anticipate  a  reply,  and  state  matter  which  would  more  properly 
come  from  the  other  side  ;  or  to  allege  what  is  presumed  m  law, 
or  what  is  necessarily  implied.      A  defendant  in  equity  was  not 
bound  to  answer  a  matter  stated  by  way  of  recital,  and  not  posi- 
tively •  •  nor  as  to  the  correctness  of  an  arithmetical  proposition  ; 
nor  generally  any  allegation  which  was  not  material  for  any 
purpose  of  the  suit.*     The  same  is  the  practice  under  the  Code ; 
neither  a  prayer  for  relief,  nor  a  conclusion  of  law,  nor  any  other 
matter  upon  which  an  issue  cannot  be  taken,  and  which  is  not 
^laterial  to  the  action,  need  be  answered  ;  and  a  failure  to  answer 

.  Porter  v.  MeCready,  1  Code  R.  N.  S.        ^  fridge j.Payson,  5  Sandf .  216. 
88,  and  cases  supra.  »  ^^1^  '    "q' 

:  :V^"'  PPp4«?i^«^'  ^""^-  P^-  B  '3  Srb  Ch  312,  3  Paige,  210. 

•^  i)  How.  rr.  o4. 

*  Bridge  v.  Payson,  5  Sandf.  216. 


600  THE   ANSWER,  [CH.  V. 

will  not  be  deemed  an  admission  of  sucli  matters  as  evidence  on 
the  trial. 

It  was  also  a  well-established  rule  in  equity  that  the  defendant 
was  not  bound  to  answer  any  allegation  which,  if  confessed,  would 
subject  him  to  punishment,  penalty  or  forfeiture.' 

This  rule  seems  to  be  preserved  in  substance,  under  our  present 
system.      The  law,  as  it  now  stands  by  statute,"  allows  a  party  to 

omit  verifying  a  pleading  in  cases  where  he  would  be 
[*526]  privileged  *  from  testifying  as  a  witness  to  the  truth  of 

any  matter  denied  by  such  pleading.  By  the  former 
practice  under  the  Code,  before  the  amendment  of  1851,  it  was 
held,  as  in  the  cases  of  Hill  v,  Midler '  and  White  v,  Cummings* 
in  the  New  York  superior  court,  that  the  defendant  need  not 
admit  or  deny  allegations  in  the  complaint  which  he  will  state 
in  his  answer  under  oath  he  might  subject  himself  to  a  criminal 
prosecution  by  answering.  The  statement,  so  verified,  will  put 
in  issue  such  allegation,  and  put  the  plaintiff  to  proof  of  his  case 
precisely  the  same  as  though  an  answer  had  been  interposed 
denying  the  allegation.  The  rule  was  thought  applicable  to  all 
cases  of  criminal  prosecutions,  such  as  misdemeanor,  for  assault 
and  battery,  etc.  But  it  is  believed  that  the  correct  practice  now 
is  for  the  defendant  to  deny  generally  all  matters  alleged  in  a 
verified  complaint  which  he  would  be  privileged  from  answering 
as  a  witness,  without  verifying  such  denial,  but  accompanied  by 
an  affidavit  stating  the  excuse  for  not  verifying  the  same.  This 
seems  to  have  been  the  course  adopted  in  Springsteen  v.  Robinson^ 
in  which,  to  a  verified  complaint  in  an  action  for  assault  and 
battery,  the  defendant,  without  taking  issue  on  the  allegations  of 
the  complaint,  set  up  in  his  answer  that  "  by  answering  on  oath 

the  allegations  contained  in  the  plaintiff's  complaint  he 
[*527]  may  subject  himself  to  a  criminal  prosecution  for  *  the 

same  subject-matter,"  etc.,  and  -was,  therefore,  excused, 
and  the  answer  was  verified  in  the  usual  form.  Judgment  was 
rendered  upon  it  as  frivolous,  with  leave  to  amend.  Subsequently, 
an  amended  answer,  consisting  of  a  general  ahd  specific  denials, 

»  4  JoliiiS.  Ch.  433,  2  Paige,  599, 3  id.  ''3  Sandf.  716  ;  and  see,  also,  Thoma* 

628, 16  Johns.  592.  &  Plumb  v.  Ifnrrop,  7  How.  Pr  57. 

«  Laws  of  1854,  p.  153.  *  8  How.  Pr.  41. 
» 2  Sandf.  684. 


SEC.  III.]  STATEMENT   OF  NEW   MATTER.  001 

without  being  verified,  was  put  in,  and  this  was  allowed  to  stand 
as  sufficient.  It  seems,  therefore,  that  an  answer,  purporting  to 
be  a  mere  excuse  for  not  answering,  although  verified  in  due 
form,  is  not  sufficient  to  put  the  facts  of  the  complaint  in  issue ; 
but  that  if  the  defendant  would  controvert  them  he  must  deny 
them  in  terms,  and  set  forth  his  excuse  for  not  verifvins:  such 
denials  in  the  affidavit  of  verification ; '  or,  if  it  be  apparent  from 
the  nature  of  the  allegations  themselves  that  the  defendant  would 
be  excused  from  testifying  to  their  truth  as  a  witness,  he  may 
deny  them  in  his  answer  M'ithout  oath,  and  without  setting  up 
any  excuse  by  affidavit  for  not  verifj'ing  such  answer.' 

5.  How  statement  of  new  matter^  in  answer^  to  he  made. 
Having  considered,  ^^6'^,  what  matters  must  necessarily  be  alleged 
by  the  defendant  in  his  answer ;  second^  what  may  be  alleged  by 
him  as  new  matter ;  thirds  what  m^xist  not  be  alleged  ;  and/bwr^A, 
what  need  not  be  alleged ;  it  remains  only  to  notice  briefly  how 
the  statement  by  the  defendant,  of  new  matter  in  his  answer, 
must  be  made. 

In  considering  the  manner  of  stating  the  facts  in  the 
[*528]  complaint,  in  a  previous  chapter  of  this  work,  *  it  was 
remarked  that  much  of  what  was  there  said  would  apply 
to  the  mode  of  stating  a  defense  by  the  defendant  in  his  answer ; 
and  it  is  only  necessary  now  to  refer  to  the  remarks  on  the  various 
subjects  noticed  under  that  head,  without  repeating  them  here  in 
detail.  There  are,  however,  certain  matters  specially  applicable 
to  the  manner  of  stating  a  defense  which  it  is  proper  to  notice  in 
this  place. 

We  have  already  seen  that  an  answer  to  be  good  in  form  —  if 

that  word  may  still  be  used  —  by  the  settled  principles  of  pleading, 

as  modified  by  the  Code,  must  state  the  facts  constituting  a  legal 

ground  of  defense ;  and  these  should  be  set  forth  in  a  plain,  direct, 

definite,  certain  and  traversable  manner,  and  though  each  defense 

must  be  stated  separately,  yet  any  number  of  facts,  constituting 

together  but  one  proposition,  or  a  single  defense^  may  be  alleged 

as  such.'     The  general  nature  and  requisites  of  an  answer,  under 

'  See    post,  §    5,   of    this    chapter,  ing  15  How.  261  ;  see  People  v.  KeV-'-y 

"  Verification  of  the  answer."    [Scoville  24  id.  369,  24  N.  Y.  74.] 

V.  Neic,  12  How.  319  ;  Blrmddl  v.  Ray-  ^  Wheeler  v.  Dixon,  14  How.  151. 

mo)id,  5  Abb.  144,  atfinned,  6  id.  148  ;  *  JBoi/ce  v.  Brown,  7  Barb.  S.  C.  80, 
Maloney  v.  Dows,  2  Hilt.  247,  affirm- 

76 


602  THE   ANSWER.  [CH.  V. 

the  Code,  are  very  clearly  defined  by  Justice  Hakkis,  in  Bud- 
dington  y.  Davis,^  as  follows:  "What  now  is  a  good  answer 
would  before  have  constituted  a  good  plea  in  bar.  Each,  the 
answer  as  well  as  the  plea  in  bar,  must  present  matter  which 
furnishes  a  conclusive  answer  to  the  cause  of  action  alleged  in  the 

complaint  or  declaration.''  A  plea  in  bar  must  deny  the 
[*529]  facts  stated  *in  the  declaration,  or  it  must  confess  and 

avoid  them.  So,  under  the  present  practice,  the  answer 
must  either  controvert  some  allegation  material  to  the  cause  of 
action,  or  state  some  new  matter  which,  admitting  the  allegations 
of  the  complaint  to  be  true,  will  constitute  a  defense.  In  other 
words,  it  must  traverse  or  deny  the  matter  of  the  complaint,  or  it 
must  confess  and  avoid  it.  In  the  latter  class  of  pleadings, 
whether  under  the  Code  or  at  common  law,  confession  is  an 
element  as  essential  as  avoidance.  There  must  be  an  express  or 
implied  admission  that  the  allegations  constituting  the  cause  of 
action  are  true,  with  a  statement  of  matter  which  destroys  their 
effect."  Accordingly,  it  was  held  in  that  case  that  an  answer  in 
an  action  for  libel,  whicli  set  up  that  if  the  defendant  issued  or 
published  the  alleged  libel,  the  same  was  true,  was  bad  pleading. 
This  doctrine  has  been  held  in  a  great  variety  of  cases,  mostly 
those  in  actions  of  libel  and  slander,  which  have  been  heretofore 
cited,^  so  that  the  rule  seems  fully  and  definitely  established  that 
mere  hypothetical  statements,  or  statements  in  the  alternative, 
are  not  to  be  tolerated,  even  under  the  liberalizing  system  of  the 

Code.  For,  though  in  Buhler  v.  Wentworth,*  an  appar- 
[*630]  ently  hypothetical  form  of  *  defense  was  sanctioned,  yet, 

as  is  said,  no  doubt  with  entire  accuracy,  in  Wies  and 

wife   V.   Fanning^  the  question  of  hypothetical  or  de  hene  esse 

pleading  does  not  seem,  in   that  ease,  to  have  been  before  the 

court,  and  the  decision  evidently  went  to  the  practical  effect  of 

the  pleading,  and  not  to  any  conditional  form    of  expression. 

'  6  How.  Pr.  401.  good  answer  would  before  have  con- 

*  I  have  already  noticed  the  excep-  stituted  a  good   plea   in  bar,"   is  not 

tion  to  this  general  rule  in  the  case  of  universally  true.     The  converse,  per- 

a  partial  defense,  such  as  recoupment,  haps,  may  be  asserted,  that  what  would 

etc., etc.;  and,also,  in  some  other  cases  have  been  a  good  plea  in  bar,  aa  t« 

where   matters  may  now  be  pleaded  substance,  is  now  a  good  answer, 

which  heretofore  might  be  put  in  evi-  ^  Ante,  p.  483,  marg.  p. 

dence,  eitlier  witli  or  without  a  notice  ••  9  How.  Pr.  282,  17  Barb.  649. 

to  that  effect  under  the  general  issue.  '  9  How.  Pr.  544. 
The  proijoaition  that,  "  what  now  is  a 


SEC.  III.]  STATEMENT   OF  NEW   MATTER.  603 

And  the  reason  why  such  form  of  pleading  is  bad  is  a  substantial, 
and  not  a  technical  reason,  namely,  because  such  a  conditional    , 
mode  of  expression  is  not  the  allegation  of  a  fact.     It  is  not  only 
a  palpable  violation  of  that  precision  and  accuracy  of  language 
which  the  old  system  required,  but  it  is,  in  many  cases,  a  mere 
evasion,  and,  therefore,  not  to  be  tolerated  under  the  new.      The 
defendant,  for  example,  denies  speaking  the  precise  slanderous 
words  alleged  in  the  complaint.     He  then  answers  further,  that 
if  he  did°speak  them  they  are  true.      Here  is,  manifestly,  no 
allegation  at  all     It  is  coupled  with  a  condition  which  the  defend- 
ant has  just  negatived  by  his  general  denial.     If  he  spoke  the 
words,  they  are  true;  but  if  he  did  not  speak  them,  as  he  has 
already  asserted  in  his  denial,  then  he  does  not  mean  to  be  under- 
stood as  saying  any  thing  about  their  truth.      If,  therefore,  he  is 
able  to  verify  the  denial  of  the  speaking  of  the  words,  as  a  matter 
of  course,  he  may  verify  the  conditional  justification.     And  so  of 

all  other  cases  of  hypothetical  pleading.' 
p531]       *But  there  are  cases  in  which  a  mere  hypothetical 
expression  may  be  introduced  into  the  statement  of  the 
defense  without  vitiating  the  pleading ;  and  such  was  the  common 
practice,  even  under  the  strict  rules  of  the  old  system,  as  may  be 
seen  by  reference  to  the  precedents.     Thus,  in  the  plea  of  bank- 
ruptcy, the  defendant  averred  that  "  after  the  making  of  the  said 
several  miyposed  promises,  if  any  such  were  made,  he,  the  said  de- 
fendant, became  a  bankrupt,"  etc.,  etc.     So,  also,  the  plea  of 
nonjoinder  of  a  defendant,  that  "  the  several  supposed  promises, 
etc.j  if  any  such  were  made  hy  said  defendants,  were  made  by 
them  and  one  A  B,  jointly,  etc.    These  and  similar  cases  are  cited 
by  Woodruff,  J.,  in  Ketcham  v.  Zarega,'  in  the  New  York  com- 
mon pleas,  in  which  this  subject  is  very  accurately  considered,  and 
such  conditional  forms  of  expression  are  regarded  as  not  vitiating 
the  pleading,  though  the  general  rule,  that  hypothetical  pleading 
is  objectionable,  is  fully  admitted.    The  answer  in  that  case  alleged 
that  tiie  defendant,  "  further  answering,  denies  that  the  said  judg- 
ment, if  so  recovered,  still  stands  in  full  force  and  effect,  and  in 
no  way  satisfied  or  annulled;"  and  the  answer  was  considered  not 

>  See  Arthur  v.  Brooks,  U  Barb.  S.        '  1  Smitli's  Com.  PI.  554. 
C.  533,  and  cases  s-upra. 


604  THE   ANSWEE.  [CH.  V. 

obnoxious  to  a  demurrer  because  of  this  hj'potbetical  form  of 
expression.  It  is  o\\\j  for  the  2)ur_poses  of  the  issxie  formed  iipon 
the  new  tnatter,  says  the  court,  that  the  defendant  must 
[*532]  admit,  or  rather  *  that  he  is,  by  setting  up  the  new 
matter,  deemed  to  admit  tlie  truth  of  the  allegations 
avoided  thereby. 

The  distinction,  I  apprehend,  will  be  found  to  consist  in  this, 
that  where  the  entire  allegation,  that  is,  the  subject-matter  of  the 
defense,  is  hypothetically  stated,  the  answer  is  bad,  because  it  is 
not  a  positive  statement ;  but  where  a  mere  hypothetical  or  quali- 
fying expression  is  connected  with  a  positive  statement  of  fact  by 
way  of  defense,*  such  form  of  pleading  is  not  objectionable,  and, 
indeed,  cannot  be  strictly  called  hypothetical  pleading.  Thus,  it 
will  be  seen,  at  a  glance,  that  there  is  a  manifest  difference  in  the 
proper  signification  of  the  two  modes  of  expression,  as,  for  example, 
after  a  denial  in  slander :  "  The  defendant  further  says,  that  if  he 
spoke  the  words  alleged,  etc.,  the  same  are  true ; "  and,  "  the  de- 
fendant further  says  that  the  alleged  words,  etc.,  ^the  same  were 
spoken  (that  is,  admitting  the  same  to  have  been  spoken),  are 
true." 

The  former  is  a  conditional  allegation,  based  entirely  upon 
the  h^^othesis  of  the  speaking  of  the  words,  which  is  not  con- 
ceded for  the  purpose  of  the  answer ;  and  this  is  what  may  properly 
be  called  hypothetical  pleading,  which  neither  the  old  nor  the 
new  system  sanctions.  The  latter,  on  the  contrary,  is  a  direct  and 
positive  assertion  of  a  fact  —  the  t7'uth  of  the  words  —  with  a  reser- 
vation no  doubt  of  the  question  of  having  spoken  them,  but 
[*533]  conceding  the  speaking  for  the  pui-pose  of  such  *  defense. 
It  is  nothing  more  than  though  the  defendant  had  alleged 
that  —  reserving  to  himself  the  benefit,  and  still  insisting  upon 
the  truth  of  his  denial,  yet  admitting  that  he  spoke  them  —  the 
words  are  true.  It  may  be  added,  that  under  the  Code,  which 
gives  a  defendant  the  benefit  of  as  many  separate  defenses  as  he 
may  have,  such  reservation,  in  any  form  or  manner  whatever,  is 
entirely  unnecessary.  Perhaps,  therefore,  under  a  very  strict  rule 
of  construction,  such  conditional  or  qualifying  words  might  bo 
struck  out  as  superfluous  and  redundant ;  but  I  do  not  see  how, 

'  As  in  KetcJiam  v.  Zarega,  and  examples  above  cited  on  ante,  marg.  p.  581. 


SEC.  III.]  STATEMEJ^T   OF   NEW   MATTER.  COS 

in  any  light,  they  can  be  regarded  as  vitiating  a  pleading  in  point 
of  substance.' 

Not  only  mnst  the  facts  be  nnconditionally  stated  in  the 
answer,  but  the  rules  of  good  pleading  require  that  they  should 
not  be  argumentatively  stated  ;  ^  nor  must  mere  legal  propositions 
or  conclusions  of  law  be  set  forth,'  nor  the  intentions  of  tlie 
parties ;  nor,  if  such  matters  are  stated  on  the  other  side,  should 
they  be  answered  by  the  defendant." 

The  answer  must  either  denj-  the  allegations  in  the  complaint 
or  state  new  matter.  It  is  not  sufficient  to  admit  the  propositions 
set  forth  in  the  complaint,  and  then,  by  way  of  answer,  set 
[*534]  up  and  *  insist  upon  the  legal  consequences  which  the 
defendant  claims  result  from  these  admitted  propositions 
of  fact.  This  practice,  though  proper  in  equity,  it  has  been  held, 
is  inadmissible  under  the  Code.^ 

An  answer  must  take  issue  upon  a  material  fact  in  the  com- 
plaint, otherwise  it  is  improperly  upon  the  record.'  But  where 
one  material  allegation  is  put  in  issue  and  remains  to  be  estab- 
lished, though  nothing  else  in  the  complaint  be  denied,  the  answer 
is  good,  and  the  plaintiff  will  be  put  to  his  proof.^  In  Thumh  v. 
Walrath*  it  was  held,  at  special  term,  that  an  answer,  assuming 
to  go  to  the  whole  of  a  single  cause  of  action,  but  containing  tacts 
which  constitute  a  defense  to  a  part  only,  is  bad  on  demurrer; 
and  this,  too,  although  the  defendant  had  put  in  another  and 
complete  answer  to  the  whole  complaint.  The  action  was  to 
recover  thirty-two  acres  of  land,  and  the  defective  answer  set  up 
a  defense  only  to  a  portion  of  the  land.  This  doctrine  was  again 
asserted  in  the  case  of  Willis  v.  Taggard,"  and  it  is  in  analogy 
with  the  former  practice  of  pleading  at  law." 

In  the  latter  case,  which  allowed  a  partial  defense  by  way  of 

recoupment  to  be  pleaded,  it  was  said,  in  the  endeavor  to 

[*535]  reconcile  with  strict  common  law  *  principles  this  inno- 

^  [Taylor  v.  Richards,  9  Bosw.  679;  Mier  v.  Gartledge,  7  Barb.  80;  and,  see 

McCormick  v.  Pickering,  4  N.  Y.  276  ;  preceding  chapter  on  Tlte  Comp'aint. 
Dovan  v.  Dinsmore,   33   Barb.  86,  20        ^  Gould  v.  Williams,  9  How.  Pr.  51. 
How.  503 ;  but,  see,  Leicis  v.  Acker,  11        ^  Lane  v.  Oilbert,  9  How.  Pr.  150. 
id.    164 ;  Hamilton  v.    Hough,  13  id,        '  Oenesee  Mat.  Ins.  Co.  v.  Moynihen, 

14.]  5  How.  Pr.  321. 

2  Arthur  v.  Brooks,  14  Barb.  533.  «  6  How.  Pr.  196,  1  C.  R.  N.  S.  316. 

3  Qordd  V.  Willinms,  9  How.  Pr.  51 ;         «  6  How.  Pr.  433. 

Seely  v.  Engle,  17  Barb.  537.  '»  0  Hill.  421,  1  Denio,  347, 1  Cbitty's 

*  Barton  v.  Sacket,  3  How.  Pr.  358  ;     PI.  510. 


606  THE   AXSWEE.  [CH.  V. 

vation  upon  common  law  pleadings,  that  full  effect  might  be 
given  to  the  Code  by  holding  that  an  answer,  claiming  to  set 
up  a  full  defense  and  falling  short  of  it,  is  demurrable  ;  but,  if  the 
answer  clai'ms  no  more  than  the  facts  which  it  affirms  will  justify, 
it  is  good.  I  cannot  see  that  any  such  distinction  can  be  useful  in 
its  application  to  the  matter  of  an  answer  as  we  now  understand 
its  uses  and  character.  A  partial  defense,  under  the  Code,  in  all 
cases  may  be  pleaded  as  such,  as  well  as  a  full  defense  in  bar.* 
Separate  defenses^  and  Jiow  stated.  —  The  Code  provides  that : 

"  The  defendant  may  set  forth,  by  answer,  as  many  defenses  and 
counter-claims  as  he  may  have,  whether  they  be  such  as  have  been 
heretofore  denominated  legal,  or  equitable,  or  both.  They  must 
each  be  separately  stated,  and  refer  to  the  causes  of  action  which 
they  are  intended  to  answer,  in  such  manner  that  they  may  be  intel- 
ligibly distinguished."  '^ 

The  nature  of  the  defenses  which  may  be  separately  pleaded  has 
been  abeady,  in  part,  considered.  They  are,  first,  a  general  or 
specific  denial ;  second,  new  matter  in  avoidance ;  third,  counter- 
claim. They  may  be  legal,  or  equitable  defenses,  or  both  ;  and 
they  should  not  be  of  such  a  nature  that  if  one  is  proved  to  be 

true  the  other  must  necessarily  be  false." 
p536]  They  must  also  be  separately  stated.  This  is  a  *  very 
important  and  essential  feature  in  the  manner  of  stating  a  defense. 
The  provision  in  the  Code  is  conclusive  to  show  that  defenses 
must  be  single,  that  is,  not  consisting  of  a  single  allegation,  or  a 
single  material  fact,  but  of  a  single  matter,  which,  as  a  whole,  and 
complete  in  itself,  will,  if  proved,  form  an  entire  defense  to  so 
much  of  the  complaint  as  it  assumes  to  answer.*  [And  it  must 
be  complete  in  itself,  without  reference  to  another  defense ; ' 
but,  in  order  to  avoid  repetition,  allegations  of  facts  which  form 
a  part  of  several  defenses  may  be  once  stated,  and  may  thereafter 
be  incoi-porated  in  each  defense  by  appropriate  words  of  reference, 
instead  of  repeating  them  at  length  in  each ; '  but  such  reference 

»  Bush  V.  Prosser,  1  Kern.  347,  and  230 ;  Loosey  v.  Orser,  4  Bosw.  392  ;  Bald- 

Bee  ante,  pp.  457,  458,  marg.  pp.  tcin  v.  U.  S.  Tel.  Co.,  6  Abb.  N.  S.  406, 

*Code,^loO,andseeSup.Ct.,Rule25.  1  Abb.  Forms  and  PI.  117,  note  3;  see 

'  See  ante,  pp.  520-524,  mnrg.  pp.  ante,  marg.  p.  197,  as  to  complaint. 

*  WUUh  v.  Tnggard,  6  How.  Pr.  433.  «  Xenia,  etc.,  v.  Lee,  2  Bosw.  694,  7 

^  Xenia  Branch  Bank  v.  Lee,  2  Bosw.  Abb.  372  ;  Ayrault  v.  Chamberlain,  33 

694,  7   Abb.  372 ;   Ayre/t  v.   Comll,   18  Barb.  230 ;  Loomis  \.  Sirick,  3  Wend. 

Barb.  261 ;  Ritchie  v.  Garrison,  10  Abb.  205  ;  1  Abb.  Forms  and  Tl.  117,  note  3. 

24G  ;  Ayrault  v.  Chamberlain,  33  Barb.  See  ante,  marg.  p.  197,  as  to  complaint, 


SEC.  III.]  STATEMENT   OF   NEW   MATTEK.  607 

must  be  clearly  and  speoifically  made.']  And,  according  to  Justice 
Selden,  there  can  be  no  proper  mode  of  framing  an  answer  in  a 
common-law  action  without  distinguishing  each  separate  defense 
bj  at  least  some  appropriate  commencement,  if  not  conclusion,  as, 
for  example,  "  and  for  a  further  defense,"  etc.,'  and  this  is  fully 
approved  by  Justice  Welles,  in  Lippenoott  v.  Goodwin.^ 

In  the  leading  case  of  Boyce  v.  Brown* several  times  above 
cited,'  it  was  said,  on  appeal  to  the  supreme  court,  by  Justice 
Hand:  "  As  I  understand  section  150,  it  is  a  statutory  inhibition 
against  duplicity  in  stating  two  defenses  together.  Each  defense, 
or  ground  of  defense,  must  be  separately  stated ;  and  this,  I  think, 
applies  to  more  than  one  defense  to  the  same  cause  of  action,  as 
well  as  to  different  defenses  to  different  causes  of  action,  so  that 

under  the  Code,  as  amended  by  act  of  April  11,  1849,  it 
[*537]  may  be   doubtful  whether  what  was  *  matter  of  form 

before,  requiring  a  special  demurrer,  is  not  now  matter  of 

substance,"  etc.^ 

The  separate  grounds  of  defense,  separately  stated  as  prescribed 

in  section  150,  take  the  place  of  separate  pleas.'     But  it  is  said,  in 

Bridge  v.  Payson,^  that  though  each  statement  intended  as  a 

defense  must  be  complete  in  itself,  yet  the  Code  does  not  require 

any  formal   commencement    or   conclusion    of   such    statement. 

There  is  nothing,  however,  in  the  Code  to  forbid  this ;  and  the 

practice,  recommended  in  Lippincott  v.  Goodwin,  and  Benedict 

v.  Seymour,  namely,  that  the  pleader  indicate  distinctly  by  fit 

and  appropriate  words  where  his  statement  of  defense  commences 

and  where  it  concludes  is,  doubtless,  the  most  safe  and  prudent. 

Besides,  the  25th  rule  of  the  court  requires  that  each  defense  shall 

be  not  only  separately  stated  hnt plainly  numbered.^     [The  same 

defense  should  not  be  stated  in  several  different  ways,*  although 

the  court  has  a  discretion  in  compelling  a  party  to  elect.'"]     And 

see,  further,  as  to  separate  statement  of  counter-claim,  post,  section 

4  of  this  chapter. 

'  Simmons  v.  FaircMld,  42  Barb.  404,  «  Cohh  v.  Frazee.  per  Gkidley,  J.,  4 

■  1  Abb.  Forms  and  PI.  117,  note  3  :  see  How.  Pr.  413. 

ante,  mnrrj.  jh  197.  '  5  Saudf.  210. 

^  Benedict  V.  Seymottr,  6  B.OW.  Pr.302.  *  See  mode  of  raising  tbe  objecticn 

2  8  How.  Pr.  242.  in  such  cases,  post,  p.  Bod. 

*  7  Barb.  S.  C.  80,  3  How.  Pr.  391.  '  See  antt   marg.  p.  199. 

*  See,  on  this  point,  Fry  v.  Bennett,  '"  Kerr  v.  Ilai/s,  35  N.  Y.  331. 
1  Code  R.  N.  S.  252.  and  post,  ch.  7,  §  3. 


608  THE  ax;  1  WEE.  [CH.  V. 

It  is  lield,  however,  in  Otis  v.  Boss,^  that  the  section  of  the 
Code,  requiring  several  defenses  to  be  separately  stated,  relates  to 
distinct  affirmative  defenses  —  new  matter  —  and  not  to  mere 
denials  of  the  allegations  in  the  complaint.  The  answer, 
[*538]  it  *  was  said,  does  not  contain  a  double  defense,  because  it 
denies  two  facts,  both  of  which  are  necessary  to  make  out 
a  good  cause  of  action ;  and  the  reason  given  was,  that  otherwise 
an  answer  could  never  deny  more  than  one  material  allegation  of 
the  complaint,  and  would  of  necessity  admit  all  the  rest ;  or  the 
defense,  although  consisting  of  bald  denials  of  allegations  on  the 
other  side,  would  call  for  as  many  separate  answers  as  there  are 
material  allegations  to  be  denied.  The  court  was,  therefore,  of  the 
opinion  that  all  the  material  facts  constituting  one  cause  of  action, 
however  numerous  those  facts  are,  may  be  denied  in  one  answer, 
without  separating  such  denials. 

The  defenses  must  not  only  be  separately  stated  but  they  must 
"  refer  to  the  causes  of  action  which  they  are  intended  to  answer 
in  such  a  manner  that  they  may  be  intelligibly  distinguialied." 
That  is  to  say,  if  the  complaint  contains  several  distinct  causes  of 
action,  these  are  to  be  separately  stated,  in  substance  similar  to 
the  manner  of  stating  the  counts  in  a  declaration,"  and  each  cause 
of  action  must  be  separately  answered.  If  the  defendant  have 
two  or  more  defenses  to  any  one  cause  of  action,  he  may  set  them 
forth,  but  each  defense  must  point  out  specilieally  the  cause  of 
action  to  which  it  is  designed  to  be  an  answer,  as,  for  example, 
"and  as  to  the  cause  of  action  secondly  set  forth  in  the  plaintiiF's 
complaint,  the  defendant,  for  answer,  further  says,"  etc., 
[*539]  *  or  in  some  other  way  to  distinguish  it  intelligibly.  The 
burden  of  analyzing  the  defense,  as  has  been  well  re- 
marked, is  not  to  be  thrown  on  the  court  at  the  trial,  nor  is  the 
plaintiff  bound  to  take  notice  of  it  at  his  peril.  If,  instead  of 
observing  these  rules  prescribed  for  the  manner  of  the  statement 
of  a  defense,  tlie  defendant  mingles  together  two  or  more  state- 
ments, each  of  which  would  be  a  sufficient  defense,  if  sepai-ately 
Slated,  the  court  will,  on  motion,  strike  out  all  the  allegations  not 
necessary  to  one ; '  [and  the  party  moving  may  elect  which  he  will 

'  8  How.  Pr.  193.  '  Benedict  v.  Seymour,  6  How.  Pr. 

'  Ante,  pp.  344-350,  marg.  pp.  301. 


SEC.  III.]  STATEMENT   OF   XEW    MATTER.  609 

strike  out,  although  the  count  left  be  demurrable/]  or  perhaps  set 
aside  the  answer."  And  similar  consequences  will  result  from  set- 
ting up  separately  two  or  more  defenses  to  a  complaint  containing 
several  distinct  causes  of  action,  without  properly  distinguishing 
as  to  which  cause  each  defense  is  intended  to  apply.  Perhaps, 
however,  in  such  a  case,  the  proper  way  would  be  for  the  plain- 
tiff to  move  that  the  defendant  be  compelled  to  make  his  answer 
more  definite  and  certain  by  amendment.'  [There  are  a  few 
cases  where,  on  account  of  the  prolixity  which  would  otherwise 
be  necessary,  several  causes  of  action  or  defenses  may  be  stated 
in  one.*] 

Joint  or  separate  answer. —  If  there  are  two  or  more  defend- 
ants, each  defendant  may  j)ut  in  a  separate  answer  in  cases  where, 
according  to  section  274,  amended  Code,  a  several  judgment  may 
be  proper.  In  equity,  two  or  more  persons  might  join  in  the 
same  answer;  and  where  their  interests  were  the  same, 
[*540]  and  they  appeared  by  the  same  solicitor,  they  *  ought  to 
do  so,  unless  some  good  reason  existed  for  answering 
separately."  When  a  joint  fiduciary  capacity  exists,  a  joint 
answer  should  be  adopted.  But  the  rule  does  not  apply  where 
the  joint  parties  are  liable  to  account,  and  incur  responsibility,  as 
in  the  case  of  executors  and  trustees.*  "When  the  interests  of  the 
defendants  are  not  the  same,  they  should  answ^er  separately. 

"Where  the  defendants,  if  liable  at  all,  are  all  liable  as  joint 
contractors,  the  answer,  as  in  equity  cases,  should  be  joint.''  If 
the  defendants  are  severally  liable,  each  may  properly  appear 
separately,  and  answer ;  as,  for  example,  in  case  the  defendants 
hold  different  relations  to  the  plaintiffs,  such  as  the  maker  and 
indorser  of  a  promissory  note,  etc.  So,  also,  where  the  defense 
relied  on  is  a  mere  personal  discharge,  such  as  bankruptcy  of  one 

'  Kerr  v.  Hayes,  35  N.  Y.  331 ;   Wal-  tlie  allegations  not  necessary  or  proper 

ler  V.  Rusken,  13  How.  28  ;  Durvian  v.  to   one    defense   or  cause   of    action. 

Killam,  4    Abb.    202 ;   Henderson    v.  N.  C.  M.] 

Jarki^on,  2  Sweeny,  324,  330.  *  Longworthy  v.  Knapp,  4  Abb.  ]  15. 

5  Blanchard  v.  Strait,  8  How.  Pr.  83 ;  M  garb.  Ch.  Pr.  158. 

Sipperly  et  al.  v.  J'roy  and  Boston  R.  ^  Id.  157. 

R.  Co.,  0  id.  83.     [This  could  not,  we  '  "  Each  defendant  is  at  liberty  to 

think,  be  done.     N.  C.  M.]  use  such  plea  as  he  may  thin"k  proper 

^  Wood  V.  Anthony,  9  How.  Pr.  78;  for  his  defense,  and  they  may  either 

and,  see,  on  this  subject,  post,  ch.  7,  join  in  the  same  plea  or  sever  at  'heir 

on  the  demurrer.  [The  correct  practice  discretion."       Such    was   the   rule   at 

undoubtedly,  is  to  move  to  strike  out  all  common  law.     Staph.  PI.  257. 

71 


610  THE  ANSWER.  [CH.  V. 

joint  contractor,  infancy,  etc.*  In  actions  for  a  wrong  or  injury, 
as  trespass,  slander,  assault  and  battery,  etc.,  the  plaintiif  is 
allowed  to  recover  against  one  or  more  of  several  defendants,  and 
a  several  judgment  is  always  proper.  Eacli  of  the  defendants, 
therefore,  may  answer  severally,  and  by  the  same  or  by  different 
attorneys.     Where,  however,  two  defendants  answer  separately 

by  the  same  attorney,  and  verdict  and  judgment  are 
[*541]  given   in   *  their  favor,  but   one   bill  of   costs   will   be 

allowed.''  And  where  two  defendants  answer  separately, 
by  different  attorneys,  one  of  whom  is  a  clerk  in  the  office  of  the 
other,'  or  who  are  partners  in  business,*  but  one  bill  of  costs  will 
be  allowed ;  otherwise,  if  not  partners.* 

If  one  or  more  of  the  defendants  fail  to  answer,  in  cases  where 
a  several  judgment  may  be  proper,  the  court  will  render  judg- 
ment against  them,  leaving  the  issues  raised  by  the  answer  of  the 
defendant  or  defendants  who  appear,  to  be  tried."  But  an  answer 
put  in  by  one  of  the  several  defendants  must  be  material  on  the 
tjuestion  of  the  plaintiffs  right  to  recover ;  it  cannot  set  up 
equities  to  be  adjusted  between  him  and  a  co-defendant,  pursuant 
to  section  274  of  the  Code.''  But  the  claims  of  one  defendant 
may  be  disputed  by  either  of  his  co-defendants,  as  well  as  the 
plaintiff;  and  it  is  no  objection  to  this  that  the  different  defend- 
ants, if  they  all  appear,  do  not  serve  their  answers  on  each  other ; 
as  in  Bogardus  v.  Parker*  where  it  was  held  that  the  claims  of 

different  defendants  in  a  partition  suit  might  be  tried  and 
[*542]  adjusted,  if  they  *  involve  interests  in,  or  liens  on,  the 

property  sought  to  be  partitioned.  And  in  rendering  a 
judgment  under  this  section,  which  shall  determine  the  rights  of 
the  plaintiffs  or  defendants,  as  between  themselves,  the  defendant 
claiming  such  judgment,  as  against  a  co-defendant,  must  actually 

'  4  How.  Pr.  372, 1  Chit.  PI.  35.  ''  Woodworth  v.  Bellmcs  and  others,  4 

*  Tracy  v.  Stone,  4  How.  Pr.  104.  How.  Pr.  24,  per  Welles,  J.     [Moak's 
»  6  How.  Pr.  404.  note  to  Clarke's  Ch.  p.  8,  ed.  1869.     In 

*  6  How.  Pr.  9.  addition   to  the   cases  there   cited  (3 
<*  5   id.   386.      The    N.   Y.    superior  Keyes,  241,  9  Paige,  539,  Clarke's  Ch. 

court  allowed  separate  bills  of   costs  595',  2   Rob.  676),  see  2  Barb.  Ch,  Pr. 

against  two  defendants  defending  by  180;  Bank  v.  Hunter,  4:  Boaw.  64G,  Eq. 

the  same  attorney  (4  Sandf.  041);  but  it  Draftsman,  823,  TOff?-^^.    p.,   and   cases 

was  held  by  the  same  court,  in  another  cited  in  Am.  note  ;   Kay  v.  Whi'aker, 

case,  that  but  one  bill  could  be  allowed  44  N.  Y.  565,  post,  769,  marg.  p.] 

in  favor  of  two  defendants.     3  Sandf.  ^  7  How.   Pr.  305.     See  authorities 

700.  cited  in  last  note. 
«  Code,  §  274. 


SEC.  III.]  STATEMENT   OF  NEW   MATTER.  Cll 

appear  as  a  litigating  party  in  court.'  It  seems  to  be  proper, 
under  the  Code,  for  a  defendant  to  join,  with  a  sufficient  answer 
barring  the  plaintiff's  right  to  recover,  an  answer  containing  facts, 
which,  if  proved,  will  authorize  the  court  to  render  judgment  that 
he  be  subrogated  in  place  of  the  plaintiff,  or  such  other  judgment 
as  will  determine  the  equities  between  him  and  his  co-defendant. 
Such  answer,  however,  should  not  be  allowed,  if  calculated  to 
prejudice  or  delay  the  plaintiff  in  collecting  his  demand ;  and  it 
would  seem  to  be  but  just  that  in  such  case  the  court  should 
require  the  truth  of  the  defense,  as  against  the  plaintiff,  to  be 
verified  by  affidavit. 

There  seem  to  be  cases,  too,  in  which  it  is  indispensable  that 
the  defendant,  seeking  affirmative  relief  against  another  defendant, 
or  setting  up  a  conflicting  claim  upon  grounds  not  brought  in 
issue  b}^  the  complaint  itself,  should  file  his  cross-complaint  to 
enable  the  adverse  defendant  to  litigate  the  points  in  controversy 
between  them.     At  all  events,  such  affirmative  relief,  it  has  been 

held,"  will  not  be  adjudged  against  a  defendant  who  has 
[*543]  *not  answered  in  the  action  where  such  cross-complaint 

or  answer  has  not  been  served  on  him,  and  he  has  not 
been  apprised  that  it  will  be  demanded. 

And  generally  all  matters  of  defense  set  up  should  be  trve. 
Under  the  old  system  of  pleading,  it  was  very  quaintly,  but  cor- 
rectly, remarked,  that  "  truth  is  not  properly  a  quality  of  plead- 
ing," '  and,  though  a  cardinal  rule  was  that  the  pleadings  ought  to 
be  true,  yet,  in  general,  there  was  no  way  of  enforcing  this  rule, 
because,  regularly,  there  was  no  proper  way  of  proving  the  false- 
hood of  an  allegation  till  issue  had  been  taken  and  trial  had  upon 
it.*  The  science  of  pleading,  it  was  said,  had  no  rules  whereby 
truth  could  be  ascertained.*  The  original  Code  attempted  to 
remedy  this  defect,  in  part,  by  requiring  a  verification  to  all 
pleadings,  and  thus  bringing  down  the  allegations  to  the  compass 
of  ordinary  probability,  if  not  of  absolute  truth.  The  verifica- 
'  tion  being  now  optional  with  the  plaintiff,  a  false  or  sham  answer 

>  Norbury  v.  Seely,  4  How.  Pr.  73.  ^  stepli.  on  PI.  96. 

2  See  this  subject  discussed  in  Tracy        *  StepU.  on  PI.  441. 
V.  N.  Y.  Steam  Faucet  Co.,  1   Smith's        *  Id. 
Com.   PI.   350.     [Bank    v.   Hunter.  4 
Bosw.  646.] 


612  THE  AI^SWER.  [CH.  V. 

may,  of  course,  still  be  put  in.  But  the  Code  has  provided  a 
way  to  enforce  the  rule  requiring  truth  in  pleading,  by  arming 
the  court  with  power  to  strike  out  such  slioAii  answer  and  render 
judgment  in  a  summary  manner,  on  motion,  although  this  remedy 
seems  to  be  but  partial,  inasmuch  as  it  is  held  not  to  extend  to 
the  striking  out  of  an  answer  containing  a  mere  denial.* 


[*544]  *SEOTION   IV. 

COUNTER-CLAIM. 

The  word  "  counter-claim "  is  introduced  into  the  Code  by  the 
amendments  of  1852.  As  the  section  now  stands'  the  answer 
must  contain,  besides  a  general  or  specific  denial  of  the  allegations 
which  the  defendant  intends  to  controvert : 

"  2d.  A  statement  of  any  new  matter  constituting  a  defense  or 
counter-claim^  in  ordinary  and  concise  language,  without  repeti- 
tion." 

Besides  this  provision,  the  amendments  of  1852  introduced  into 
the  Code  the  following  new  definition  : 

"  The  counter-claim  mentioned  in  the  last  section  must  be  one 
existing  in  favor  of  a  defendant,  and  against  a  plaintiff,  between 
whom  a  several  judgment  might  be  had  in  the  action,  and  arising 
out  of  one  of  the  following  causes  of  action : 

"  1.  A  cause  of  action  arising  out  of  tlie  contract  or  transaction 
set  forth  in  the  complaint  as  the  foundation  of  the  plaintiflTs  claim, 
or  connected  with  the  subject  of  the  action. 

•'  3.  In  an  action  arising  on  contract,  any  other  cause  of  action 
arising  also  on  contract,  and  existing  at  the  commencement  of  the 
action." 

The  latter  subdivision  evidently  embraces  that  class  of 
[*545]  defenses  to  an  action  usually  denominated  *  set-oft'.     The 
former,  other  cases  of  cross-demand  between  the  parties 
growing  out  of  the  subject-matter  of  the  suit. 

What  is  counter-claim.  —  It  may  be  important  to  know  the 
exact  definition  of  the  term  "  counter-claim,"  as  used  in  the  Code, 
and  what  species  of  defenses  it  was  intended  to  embrace ;  for,  as 
will  be  noticed  more  at  large  in  the  next  chapter,  it  is  only  in  case 

'  Post,  §  6  of  this  chapter.  '  The  word  "  counter-claim  "  is  sub- 

*  Code,  §  149.  stituted  in  place  of  "  set-oflF." 


SEC.  IV.]  COUNTER-CLAIM.  613 

the  defense  set  up  is  a  "  counter-claim "  that  a  reply  is  now 
uecessarj.  It  might,  perhaps,  in  the  absence  of  all  judicial  con- 
struction on  this  new  provision  of  the  Code,  be  difficult  to  deiine 
correctly  and  with  precision  the  exact  legal  delinition  of  the  term 
"counter-claim."  It,  undoubtedly,  embraces  what  was  formerly 
known  as  set-off,  and,  also,  recoupment  of  damages  in  those  cases 
where  such  matter  of  recoupment  would  have  been  the  subject  of 
a  cross-action.'  But  it  has  also,  evidently,  a  wider  and  more 
extended  signification ;  and,  embracing  matters  which  heretofore 
have  been  classed  as  purely  equitable,  and  could  not  have  been 
interposed  to  an  action  at  law,  or  directly  in  a  suit  in  equity,  it  is 
intended  to  aj^ply  to  every  defense  which  heretofore  would  have 
been  the  subject  of  a  cross-suit,  equitable  as  well  as  legal,  such 
not  only  as  go  to  defeat  the  plaintiff's  action  merely,  but  such  as 
ask  affirmative  relief  for  the  defendant,  limited  only,  cases  other 
than  a  set-olf  on  contract,  by  the  restriction  that  such  defense  must 
arise  out  of,  or  be  connected  with  the  subject  of  the  plaintiff's 

demand. 
[*5tl:6j       *  It  may  be  proper  here  to  observe  that  the  portion  of 

the  Code  above  quoted,  relative  to  the  "  counter-claim," 
is  identical  with  the  provisions  on  that  subject  contained  in  the 
report  of  the  commissioners  to  the  legislature  of  1850,  which  was 
printed,  but  never  acted  on  by  that  body.^  In  oi-der  to  elucidate 
more  slearly  the  nature  of  the  counter-claim,  as  intended  by  the 
commissioners,  I  quote  the  following  from  their  explanatory  note 
to  the  section  in  question : 

"The  statute  of  set-off  was  the  first  innovation  upon  the  common 
law.  That,  however,  was  quite  limited  in  its  operation.  Of  late 
years  the  courts  have  let  in  a  new  set  of  cross-demands  under  the 
name  of  recoupment  We  propose  in  this  section  to  open  the  door 
still  wider,  and  to  admit  many  cross  demands  now  excluded.  Fur- 
ther experience  may  show  that  the  door  should  be  open  wider  still. 

"  The  first  subdivision  of  this  section  is  intended  to  remove  a 
doubt,  which  has  been  sometimes  expressed,  whether  affirmative 
relief  can  be  given  upon  an  answer  setting  up  a  defense  which  here- 
tofore would  have  been  accounted  equitable  only.  For  example,  in 
the  case  of  an  action  to  dispossess  an  occupant  of  land  ;  the  defend- 
ant claims  to  occupy  under  a  contract  to  purchase,  and  asks  on  his 
part  for  a  judgment  that  the  plaintiff  give  him  a  conveyance.     It  l^ 

^Leavenworth  v.  Parker,  53  Barb.  ^  See  Report,  §645,  subd.  2,  and  !5  043. 
132;  Clint07i  v.  Eddy,  1  Laus.  61. 


614  THE  ANSWER.  [CH.  V. 

the  intention  of  the  Code  that  the  whole  controversy  between  the 
parties  should  be  settled  in  one  action,  and  that  either  plaintiff  or 
defendant  should  have  such  relief  as  the  nature  of  the  case  requires. 
It  is  as  easy  to  do  this  as  it  is  to  decide  upon  what  was  considered 
a  mere  equitable  defense  to  a  legal  demand,  and  there  is  no  difhculty 
in  either. 

"Suppose   an   action    upon   a    written    agreement,   to    recover 

damages  for  not  performing  it.  The  defendant  answers  that 
[*547]  *  the  writing  does  not  express  the  intention  of  the  parties, 

and  that  he  did  perform  it  according  to  the  real  agreement 
between  them.  Is  such  a  defense  admissible  under  the  Code  ?  That 
question  involves  another,  Avhicli  is  this :  Is  the  agreement  by  the 
law  of  the  land  binding  upon  the  defendant  as  it  stands,  or  is  it  not  ? 
Xow,  if  it  be  not  binding,  that  is,  if,  before  the  Code,  he  could  by 
any  form  of  action  get  rid  of  it,  he  can  do  so  now  in  the  action 
prosecuted  under  the  Code.  The  effect  of  the  Code  is  to  open  the 
door  to  remedies  without  disturbing  rights.  It  has  not  changed  the 
parties.     It  has  simplified  and  shortened  their  remedies." ' 

From  these  remarks  of  the  commissioners,  we  gmi  a  tolerably 
clear  idea  of  the  nature  and  extent  of  the  "  counter-claim,"  as 
used  in  the  Code.     It  is  intended  to  embrace : 

First.  Matterfe  which,  by  the  statute,  might  heretofore  have 
been  interposed  by  way  of  set-off  in  an  action  on  contract,  and 
also,  in  such  action,  any  other  damages,  liquidated  or  unliquidated, 
accrued  at  the  commencement  of  the  action,  arising  on  a  contract 
between  the  parties  to  the  action,  or  assigned  to  the  defendant 
before  the  action  was  commenced. 

Second.  Matters  which  heretofore  might  have  been  given  in 
evidence  in  recoupment  of  damages,  and  which  would  have  been 
the  subject  of  a  cross-action  by  the  defendant  against  the  plaintiff. 

Third.  Any  other  matter  of  defense,  legal  or  equitable, 
whereby,  by  "  the  law  of  the  land,"  the  defendant  would 
[*54:8]  have  been  enabled,  in  any  form  of  *  action,  legal  or 
equitable,  not  only  to  defeat  the  plaintiff's  claim,  but  to 
have  obtained  affirmative  relief  in  respect  to  some  matter  grow- 
ing out  of  or  connected  with  such  claim ;  and. 

Fourth.  Any  matter  arising  out  of,  or  connected  with,  the 
subject  of  the  plaintiff's  action,  which,  though  not  a  complete 
defense  thereto,  might  have  been  the  ground  of  another  action 
by  the  defendant  against  the  plaintiff  for  damages  or  specific 
relief. 

'  Report  of  the  commissioners,  complete,  pp.  267,  268. 


SEC.  IV.]  COUNTER-CLAIM.  CiJ 

The  view  taken  by  the  courts  of  this  provision  of  the  Code '  is 
not  substantially  different  from  the  above.  In  Sllliman  v.  Eddy^ 
Justice  Ckippen  thinks  a  counter-claim  must  be  construed  to 
mean  "  an  opposition  claim,  or  demand  of  something  due ;  a  de- 
mand of  something  which  of  right  belongs  to  the  defendant  in 
opposition  to  the  right  of  the  plaintiff."  In  Gage  v.  Angell* 
Justice  Allen  regards  it  as  "sufficiently  comprehensive  to 
embrace  any  claim  or  demand  of  any  right,  or  of  any  amount 

due  or  supposed  to  be  due,  adverse  or  in  opposition 
[*549]  *  to  the  claim  or  demand  of  the  plaintiff.     All  claims  and 

demands  of  the  defendant  against  the  plaintiff",  in  an 
action  which,  if  allowed,  will  reduce  or  overturn  the  plaintiff's 
claim,  may  be  said  to  be  counter-claims,  that  is,  adverse  to  the 
plaintiff".  Whether  they  may  be  set  up  in  defense  of  the  action 
depends  upon  the  question  whether  they  came  v/ithin  the  150th 
section,  which  limits  and  defines  the  counter-claims  which  may 
be  thus  set  up."    In  Kneedler  v.  Steenlurgh,"^  Justice  Hand  con- 

>  The   exact  meaning  of  the   term  Code."     And  Judge  Crippen  doubta 

"  counter-claim,"  as  used  in  the  Code,  "whether   a   more   perplexing,  unde- 

seems  to  have  baffled  judicial  ingenu-  finable,  impracticable  combination  of 

ity   itself;    and   some   of    the   judges  words  could  have  been  joined  together 

liave  not  hesitated  to  acknowledge  the  in  the    English  language  than   those 

fact  in  no  very  complimentary  "terms  selected    in    this    particular    by    the 

to  the  authors  of  this  provision.   Judge  modern  reformers  who  claim  to  stand 

Barculo  thinks  it  unnecessary  "  to  at-  as  sponsors  to  the  Code."     See  Roscoe 

tempt  to  define  the  precise  meaning  of  v.  Maiaon,  7  How.   123;    Silliman  v. 

this  unfortunate  compound  which  has  Eddy,  8  id.  123. 

been  pressed  by  our  modern  Solons  '^  8  How.  Pr.  133. 

into  the  service  of  the  fourth,  and  it  is  ^8  How.  Pr.  335. 
to  be  hoped  the   last,  edition  of  the 

*  In  the  following  extract  from  the  opinion  in  this  case,  Judge  Hand  traces  tho 
derivation  and  use  of  the  term  "  counter-claim :" 

"  The  meaning  of  the  word  '  counter-olaim '  has  already  been  the  subject  of  some 
discussion.  Not  being  a  word  of  art,  nor  found  in  our  dictionaries,  its  definition,  as 
used  in  sections  149  and  150  of  the  Code,  is  not  perfectly  clear.  It  does  not,  however, 
owe  its  paternity  to  the  Code.  Although  seldom  used,  it  has  been  occasionally  by  the 
profession.  (By  Williams  and  Patterson,  JJ.,  in  iV/ee  v.  TomUnson,  4  Ad.  and  E.  2ti3; 
Wilde,  C.  J.,  in  Callcndar  v.  Hnivard,  10  C.  B.  302;  Sedg.  on  Damages,  ch.  IT.)  Like 
some  other  rather  inelegant  compounds,  as  'counter-demand  '  (6  Ves.  141),  'counter- 
letter'  (11  Pet.aJl),  'counter-paper'  and  'counter-security'  (Chit,  on  Bills,  711),  'coun- 
ter-action '  (5  Exch.  356),  it  may  be  sometimes  met  with  in  our  law  books ;  but  most 
generally,  before  the  Code,  I  believe,  it  bad  reference  to  a  set-off.  The  word  '  claim ' 
has  been  considered  a  'word  of  art,'  and  long  since  was  defined  by  Ch.  J.  Dyer  to  be 
'  a  challenge  by  a  man  of  the  property  or  ownership  of  a  thing  which  he  has  not  in 
possession,  but  which  is  wrongfully  detained  from  him."  (Plowd.  359.)  And  its  popu- 
lar signification  and  use  would  hardly  include  recoupment  in  every  case.  Recoupment 
Is  not  always  a  subsisting  claim.  Suppose  a  disseisor  erects  permanent  improvements; 
when  called  upon  to  respond  in  damages,  he  may  recoup  what  he  has  so  expended, 


616  THE   AXSWEK.  [CII.  V, 

siders  the  term  as  liaving  a  more  restricted  meaning,  and  that  the 
counter-claim  of  the  Code  must  be  in  itself  a  cause  of  action,  or 
cross-demand.  "  The  defendant,"  he  says,  "  can  have  no  claim, 
properly  speaking,  arising  solely  out  of  the  plaintifi''s  cause  of 
action.  And  where  the  defense  rests  in  the  mere  right  of  deduc- 
tion or  diminution  of  the  plaintiff's  damages,  the  law  before  gave 
and  enforced  that  right.  The  claim  of  the  plaintiff"  may  now  be 
met  hi/  independent  causes  of  action  arising  upon  the  same  or 
another  contract ;  but  that  is  quite  another  thing." 

In  the  application  of  these  principles,  Judge  Hand  thinks  that 
in  a  suit  by  a  vendor  against  his  vendee  for  purchase-money,  when 
the  vendee  sets  up  in  defense,  and  claims  to  recover  damages  for 
a  breach  of  warranty  of  the  thing  sold,-  this  is  a  counter-claim 
within  the  meaning  of  the  Code ;  but  that  where  a  vendee,  who 

has  paid  nothing  in  an  action  for  the  purchase-money, 
[*550]  seeks  merely  to  *  reduce  the  amount  of  the  recovery  by 

showing  a  partial  failure  of  the  consideration,  or  even 
defeat  a  recovery  by  showing  a  total  failure,  such  a  defense,  inas- 
much as  it  is  not  properly  a  "  cause  of  action,"  and  does  not 
"arise  out  of  a  cause  of  action,"  cannot,  in  a  strict  sense,  be 
deemed  a  counter-claim.*  And  in  a  recent  case  in  the  N,  Y. 
superior    court,  ^    the     counter-claim   is   considered    as   relating 

only  to  such  causes  of  action  as  exist  against  the  plain- 
[*551]  tiff  on  the  *  record,  and  might,  in  their  nature,  be  the 

basis  of  an  action  against  him  at  the  suit  of  a  defend- 
ant. Thus  a  set-off  against  an  assignor,  before  notice  of  assign- 
ment, is  defensive  matter  merely,  and  not  strictly  a  counter-claim 
in  an  action  by  the  assignee. 

The  tests  of  a  counter-claim,  therefore,  would  seem  to  be,  that 
it  must  be  matter  which,  in  itself,  would  have  been  the  subject  of 
an  independent  suit;  or  matter  looking  to  affirmative  relief, 
either  in  partial  mitigation,  or  total  extinguishment  of  the  plain- 
tiff's claim.     It  is  a  claim  set  up  by  the  defendant  counter  to  the 

>  10  How.  Pr.  67.  "  Glenson  v.  Moen,  2  Deur,  639. 

(Coulter's  Case,  5  Co.  131 ;  8  Vln.  556 ;  Sedg.  on  Damages,  ch.  17 ;  2  R.  S.  311.)  And  yet 
he  has  no  cause  of  action  therefor.  Its  early  use  was  in  this  sense  ;  but  I  do  not  under- 
stand this  would  be  a  counter-claim  without  the  Code.  Indeed,  the  examples  of 
recoupment,  given  by  Viner,  are  under  the  head  of  '  Discount.'  A  counter-claim  muat 
be  a  cause  of  action  —  a  '  cross-demand,'  "  etc.,  etc. 


6EC.  IV.]  COUNTER-CLAIM.  617 

claim  of  the  plaintiff;  a  claim  for  which  the  defendant  might 
have  brought  a  suit  against  the  plaintiff,  whether  such  claim  be 
such  as  heretofore  wasdenominated  legal  or  equitable,  or  whether 
its  results  be  to  aflect  the  plaintifi"'s  demand,  or  to  establish  an 
independent  demand  against  him.  Matter  alleged  by  way  of 
defense,  not  being  in  itself  a  valid  cause  of  action,  or  looking  to 
affirmative  relief,  is  not  a  counter-claim,  within  the  meaning  of 
the  Code,  and  requires  no  reply. 

[Where  the  facts  set  up  in  an  answer  may  operate  as  a  payment 
or  defense^  or  by  rendering  an  account  necessary,  by  way  of  a 
counter-claim,  the  answer  will  be  construed  most  strongly  against 
the  pleader  and  be  held  to  interpose  a  defense  and  not  a  counter- 
claim.' If,  however,  the  facts  be  set  up  and  the  defendant  ask  by 
the  answer  to  recoup  to  the  extent  of  his  claim,  such  plea  will  be 
held  to  be  a  counter-claim.*] 

In  the  further  discussion  of  the  subject,  I  shall  consider  the 
counter-claim  with  reference  to  particular  classes  of  defenses,  and 
examine  each  separately,  in  connection  with  the  principal  decisions 
under  the  Code  relating  thereto,  in  the  following  order:  1st. 
Set-off.    2d.  Recoupment.    3d.  Other  subjects  of  cross  action  and 

for  specific  relief. 
[*552]  ^In  respect  to  the  set-off^  or  a  cause  of  action  arising 
on  contract,  it  is  to  be  observed  that  the  demand  must 
exist  at  the  time  of  the  commencement  of  the  action.  This  is  in 
accordance  with  the  rule  existing  before  the  Code."  But  in  other 
respects  the  Code  has  enlarged  the  privilege  of  set-off  beyond 
wdiat  the  statute  permitted.  Thus,  by  reference  to  the  statute  of 
set-off,  it  will  be  seen  that  a  demand,  to  be  set-off,  must  be  not 
only  one  arising  upon  judgment  or  contract,  but  must  be  "  a 
demand  for  real  estate  sold,  or  for  personal  property  sold,  or  for 
money  paid,  or  services  done,  or  if  it  be  not  such  a  demand,  the 
amount  must  he  liquidated.,  or  be  capable  of  being  ascertained  hy 
calcidation;  "  and  it  could  be  allowed  only  in  "actions  founded 
upon  demands  which  could  themselves  be  the  subject  of  set-off 
according  to  law."  * 

'  Bates  V.  Bosekrans,  23  How.   98,  affirmed  by  Ct.  of  Appeals,  16  id.  576, 

affirmed,  37  N.  Y.  40!),  4  Abb.  N.  S.  276 ;  note. 

Dreaser  v.  Barton,  2  Alb.  L.  J.  13,  Ct.  «  3  Johns.  145,  9  id.  322,  6  Hill,  10,  2 

Appeals.  R.  S.  354,  ^  18,  subd.  4,  2  Edm.  St.  365 

•^  Lemon    v.    Trull,   13    How.    248;  *  2  R.  S.  354,  §  18,2  Edm.  St.  365. 
78 


618  THE   ANSWER.  [CH.  V. 

[A  claim  whicli  is  a  valid  defense  may  be  merged  in  a  judg- 
ment and  the  party  holding  it  be  precluded  from  using  it  for  the 
reason  that  the  judgment  was  rendered  at  too  late  a  day.'] 

When  the  suit  was  upon  an  unliquidated  demand,  as  a  bond  of 
indemnity,  no  set-off  was  allowed.''  There  could  be  no  set-off  for 
a  landlord's  breach  of  covenant  or  agreement  in  his  lease ;  the 
remedy  being  by  cross-action."  Though  the  tenant,  it  seems, 
might  recoup  damages  for  a  breach  of  an  agreement  by  the  land- 
lord to  repair."  A  set-off  was  not  admissible  in  an  action  on 
contract  for  a  breach  of  warranty.^  And,  generally,  in  all 
[*553]  cases  where  *the  damages  were  uncertain  or  unliquidated, 
except  for  real  estate  or  personal  property  sold,  or  money 
paid,  or  services  done,  no  set-off  could  be  allowed."  [The 
receiver  of  an  insolvent  insurance  company  has  no  right  to  set  off 
a  demand  in  favor  of  the  company,  becoming  due  after  his  appoint- 
ment, against  a  claim  hold  against  the  company,  by  a  creditor,  at 
the  time  of  the  appointment,  and  then  due.'^ 

In  equity,  in  suits  for  the  payment  or  recovery  of  money,  set- 
offs were  also  allowed  in  the  same  manner  and  with  like  effect  as 
in  actions  at  law.*  And  though  before  the  statute  it  was  held 
that  a  cross-bill  was  necessary  in  order  to  enable  the  defendant  to 
avail  himself  of  a  set-off  in  chancery,'  yet,  under  the  statute,,  the 
defendant  was  allowed  to  set  up  his  statement  of  set-off"  in  his 
answer,  as  was  done  by  notice  under  the  general  issue  in  a  suit  at 
law,  and  litigate  it  in  the  same  suit.*"  But  to  entitle  a  defendant, 
in  equity  as  well  as  at  law,  to  set  off  a  demand  not  liquidated  by 
judgment  or  decree,  he  must  have  been  the  owner  of  such  demand 
at  the  time  of  the  commencement  of  the  suit  against  him;  and 
even  where  the  claim  in  suit  was  a  bond  payable  in  installments, 
the  defendant  in  equity  could  not  set  off"  a  demand  which  became 
due  to  him  from  the  plaintiff,  subsequent  to  the  commencement 
of  the  suit,  against  an  installment  upon  the  bond  which  became 
payable  after  the  right  of  set-oft'  accrued."     In  such  case,  how- 

1  LoweU  V.  Lane,  33  Barb.  292;  Dela-  »  2  Johns.  150. 

zillo   V.  Levy,  Livinjsrston's  Jud.  Opin-  '  Pardo  v.  Osgood,  2  Abb.  N.  S.  365j 

ions  33-85  ;  but  see  Kelsey  v.  Bradbury,  367-872. 

12  N.  Y.  Leg.  Obs.  222.  «  2  R.  S.  174,  §  40,  2  Edm.  St.  180. 

«  1  Sandf.  254.  '  Tro^tjy  v.  Haight,  Ilopk.  270. 

"  12  Wend.  529, 15  id.  559.  '"  Chapman  v.  Robinson,  6  Paige,  627. 

■»  7  Hill,  53,  2  Comst.  283.  "  Enapp  v.  Burnham,  11  Paige,  830. 

*  li  Wend.  584. 


SEC.  IV.]  COUNTER-CLAIM.  619 

ever,  if  the  plaintiff  was  insolvent,  so  that  the  set-off  could  not  be 

recovered  against  him  by  an  ordinary  suit  at  law,  or  if 
[*554r]  there  was  any  other  ground  for   equitable  relief,  *  the 

defendant  had  a  remedy  by  filing  a  cross-hill,  showing 
therein  the  necessity  of  a  set-off  against  the  installment  then  due.' 
We  shall  presently  notice  how  far  this  principle  is  applicable  now. 
The  Code  permits  a  set-off  under  the  name  of  "  counter-claim  " 
in  all  these  various  cases.  The  defendant  may  set  off  in  all  cases, 
"  in  an  action  arising  on  contract,  any  other  cause  of  action  also 
a/rising  on  contract,''^  no  matter  whether  it  be  liquidated  or 
unliquidated,  whether  it  be  damages  for  breach  of  warranty,  or 
any  other  contract,  and  no  matter  what  the  nature  of  the  con- 
tract be  on  which  the  plaintiff  seeks  to  recover,  whether  for  the 
breach  of  a  bond  of  indemnity,  or  any  other  unliquidated  demand. 
Tliis  was  so  held  in  the  case  of  Beardsley  v.  Stover,'  in  which  an 
answer  to  a  complaint  for  unliquidated  damages  for  breach  of  a 
special  agreement  was  allowed  to  be  amended  by  alleging  a  set- 
off. And  matter  as  set-off,  arising  on  contract,  which  heretofore 
could  have  been  liquidated  only  by  a  suit  in  equity,  may  now  be 
interposed  as  a  counter-claim  to  a  purely  legal  cause  of  action. 
Thus,  in  Gage  v.  Angell^  in  an  action  on  a  promissory  note,  the 
defendant  was  allowed  to  set  up  and  claim  in  his  answer  a  balance 
due  him  upon  an  unliquidated  and  unsettled  partnership  account 

between  himself  and  the  plaintiff,  the  partnership  having 
[*555]  been  dissolved  prior  to  the  action.  The  inconvenience  *and 

possible  delay  to  the  plaintiff,  in  compelling  him  to  await 
the  result  of  a  final  accounting  in  a  complicated  partnership  busi- 
ness, was  urged  against  allowing  such  a  defense ;  but  the  court 
held  that  the  claim  of  the  defendant  strictly  arose  out  of  contract, 
namely,  the  contract  of  partnership,  and,  as  the  act  of  the  legis- 
lature embraced  all  claims  of  this  character,  whether  legal  or 
equitable,  such  a  defense  could  not  be  excluded.*  But  the  Code 
does  not  allow  a  set-off  on  contract  in  an  action  for  a  wrong,  and 

'  Kna/pp  V.  Burnham,  11  Paige,  330.     a  suit  upon  a  note  the  defendant  can- 

*  8  How.  Pr.  294.  not  set  up  that  the  parties  have  been 
'  8  How.  Pr.  335.  partners  and  that  the  firm  owed  him, 

*  But  this  doctrine  is  disapproved  in  unless  he  also  alleged  a  settlement,  or 
a  recent  case  (now  in  the  hands  of  the  insolvency,  etc.,  or  something  else  es< 
reporter),   at   a   general   term    in    the     tablishing  a  peculiar  equity. 

4th  district,  in  which  it  is  held  that  in 


r/21)  THE  ANSWER.  [CH.  Y. 

the  rrile  in  that  respect  remains  aa  it  stood  before.'  So,  too,  it  is 
prestirne^],  the  other  provisions  of  the  Revised  Statutes,  relative 
to  set-offs,  are  not  affected  hy  the  Code,  namelj,  that  the  set-off 
ran«t  be  due  to  the  defendant  in  his  own  right,  either  as  original 
creditor  or  assignee,  and  that,  if  there  be  several  defendants,  the 
demands  mt-off  must  be  due  to  them  all  jointly  (or,  by  the  Code, 
gnch  of  them  as  may  be  entitled  to  a  several  judgment) ;  and,  if 
tlic  plaintiff  be  a  trustee,  so  much  of  the  demand  existing  against 
those  whom  the  plaintiff  represents,  or  for  whose  benefit  the 
fu;t,iofi  is  hrought,  may  be  set  off  as  will  satisfy  the  plaintiff's  debt, 
etc,  etc.* 

Ry  the  first  paragraph  of  the  section  under  considera- 
[*556]  t.ion,  the  counter-claim  must  be  one  "existing  *in  favor 
of  ji.  (lr;f(!ri(lfirit,  and  against  a  plaintiff,  between  \vliom  a 
Bovcrul  jii(lgrnerit  might  be  had  in  the  action."  This  introduces 
a  very  important  change  in  the  law  which  is  worthy  of  particular 
notice.  Under  the  fonner  system  courts  of  equity,  following  the 
law,  (lid  not  allow  a  set-off  of  a  joint  debt  against  a  separate 
d(5i)t.,  or,  conversely,  of  a  separate  debt  against  a  joint  debt,  that 
is  to  Hfiy,  a  set-off  of  debts  accruing  in  different  rights,  was  not 
alh)\v(Mi.*  I'lit  H|)Ocial  circumstances  sometimes  created  an  equity 
wliicli  would  juHtify  this;  as,  for  example,  a  joint  debt  might  be 
Hct.  (ill"  iig.'iiiiKt.  a  .separates  dcl)t,  where  a  clear  series  of  transactions 
(•HlMblislicd  tli(!  liK^I.  that  there  was  a  joint  credit  given  on  account 
ol"  the  Hcparatc  debt.*  It  is  held,  however,  under  the  Code,  that 
a  Bot-off  is  allowahh^  in  all  cases  where  a  several  judgment  is 
]»ro))(M'.  Any  two  dclbudants,  or  any  number  of  defendants, 
jointly  iiiul  severally  liable,  may  set  off  his  or  their  individual 
chiims  against  the  demand  of  the  plaintiffs.  This  was  so  adjudi- 
catcil  ill    /^tr.'ioiis  (in//  Wa/cfi  \.  Nash^s  executors  and  others*  in 

'  Son  MoCrant'd  v.  Aldm.  40  Barb.  v.  OMftdd,  4  Term  R.  123  ;  Graves  v. 

8TJ.                        '  Woodburi/,  4  Hill , nr)}) ;  Sout?i  v.  Tanner, 

"•3  It.  S.  (!U1  ml.)  400, 5^  3i).    Soo.ttlso,  3   Taunt.   254;    Williams  v.  Allen,  7 

^  1 12.  Coiliv  t^'ow.  ai(i ;  Scott  v.  Spears,  9  Cush.  .504; 

»  2  StiMv'H  Kii.  Jur.,  tj  14;U5.  Muiin  v.  Mec/ianirs,  1   Peters'   U.  S. 

*  M.n  ('riincli.lU.  78-4;    Carter  v.  Jfi^jye,  10  Barb.  ISO; 

»  8  Mow.  Tr.  454  [Tm/lor  v.  Hoot,  4  Head  v.  Jatidon.'So  How.  303.    But  see 

Kr>v«<i».  IVM\ :  Iirii/<j»  v.   Vose,  20  Barb,  Mi/nders  v.  Snoofc.  1  Lans.  488  ;  Walsh 

477'.  1.1  N,  V.  47V;  Newalt  v.  Salmon,  v.  Ostrander,2'i  Wend.  178;  Campbell 

a2nnr»i.  «47;  Schubert  v.  Ifartea'hM  v.    Cenet.  2   Hilt.   290;  Cummings  v. 

i«l,  417  ;  l\rrn  v.  Chester,  12  \\>h.  N.  S.  Morris,  25  N.  Y.  685;  Hess  v.  Fox,  10 

l!il  ;    Leiris   v.  .l(<Av;',   11    How.    U)3;  W\M\A.4iZ^\;  Peabody  v.  Bloomer.'d  khh. 

ifimpson  V.  //<i/'^  14  Jolins.  02  ;  Mitchell  353,  6  Duer,  678.1 


SEC.  IV.]  COUNTER-CLAIM.  621 

which,  in  an  action  against  three  defendants  upon  a  joint  and 
several  promissory  note,  a  judgment,  held  by  one  of  the  defend- 
ants against  the  plaintiffs,  was  allowed  to  be  set  off.  "  In  nij 
opmion,"  says  Justice  M^vkvin,  "  in  an  action  proper  for  a  set- 
off or  counter-claim  against  several  defendants,  severally 
[*557]  liable,  or  jointly  and  severally  liable,  any  one  of  *  them 
may  avail  himself  of  his  set-off;  or  any  number  of  the 
defendants,  to  whom  the  set-off  is  justly  due,  may  avail  them- 
selves of  such  set-off.  This  may  be  difficult  in  practice ;  but  so 
understanding  the  system  of  the  Code,  it  is  my  duty  so  to  admin- 
ister it,  or,  in  good  faith,  to  make  the  attempt,  as  the  cases  arise."  ' 
Upon  the  same  principle  it  would  seem  that  where  A  brings  an 
action,  arising  on  contract,  against  B,  the  latter  may  set  up,  by 
way  of  counter-claim,  a  joint  and  several  account,  or  promissory 
note  which  he  holds  against  A  and  C.  The  decision  in  Compton. 
V.  Green  and  Ide^  though,  from  the  reporter's  notes,  apparently 
in  conflict  with  this  proposition,  is  not  really  so.  It  does  not 
seem  to  decide  any  thing  more  on  this  point  than  that  a  defend- 
ant is  not  bound  to  set  off  a  demand,  held  against  the  plaintiff 
and  another,  in  a  suit  before  a  justice  of  the  peace  brought  by  the 
plaintiff  alone ;  but  he  is  at  liberty,  if  he  chooses,  to  maintain  a 
separate  action  for  it.  One  of  two  defendants,  in  that  case,  held 
an  account  against  the  plaintiff  by  assignment  previous  to  the 
action,  and,  no  doubt,  if  the  defendants  had  been  severally  as  well 
as  jointly  liable  for  the  plaintiff's  demand,  such  account,  if  set  up 
as  a  counter-claim,  would  have  been  a  valid  set-off.' 

[The  accommodation  indorser  of  a  note  given  for  chattels  sold 
cannot,  at  law^  avail  himself  of  a  breach  of  warranty,  as  to  the 
quality  of  such  chattels,  by  way  of  defense,  recoupment  or  counter- 
claim. Such  a  defense  does  not  rest  upon  a  failure  of  tlie  con- 
sideration of  the  contract  on  which  the  action  is  founded  but  is 
the  setting  off  of  one  distinct  claim  against  another.  In  such 
case,  it  is  the  right  of  the  principal  to  set  up  a  counter-claim,  if 

'  See  People  y.-Cram  and  White,  8  the  bringing'  in  of  other  parties  who 

How.  Pr.  151,  as  to  wlien  and  in  wlaat  have  no  interest  in  the  deterniinntion 

cases  a  separate  judgment  may  be  had.  of  the  causes  of  action  set  fortii  in  the 

'  9  How.  Pr.  228.  complaint.     From  the  report  of   that 

'  But  see  Conrsen  v.  Uamlin,  2  Duer,  case,  however,  the  nature  and  character 

513,  holding  generally  that  a  counter-  of  the  counter-claim  relied  on  does  not 

claim  cannot  be  set  up  in  the  answer,  very  clearly  appear, 
which,  in  order  to  be  adjusted,  requires 


622  THE  AIs^SWEE.  [CH.  V. 

sued,  or  bring  his  separate  action ;  and  the  surety  cannot  make 
the  election  for  the  principal,  or  do  any  thing  to  impair  his  right 
of  recovery  in  a  separate  action  ;^  nor  can  subsequent  purchasers.' 
If  the  principal  debtor  have  a  counter-claim  against  the  creditor, 
and  be  insolvent,  the  surety,  by  bringing  an  equity  suit  against 
the  creditor  and  the  principal,  may  compel  a  set-off  of  such 
counter-claim,*  or  may  have  the  same  relief  by  interposing  an 
equitable  defense  ;*  and  it  seems  may,  if  necessary,  compel  the 
creditor  to  bring  in  the  principal  as  a  party  ;^  and  the  set-oif  may 
be  made  if  the  principal  be  a  party/  In  a  suit  against  sureties  on 
a  note  given  for  a  slave,  they  may  set  up  a  breach  of  warranty  of 
soundness  in  defense,  though  the  warranty  was  to  a  principal  who 
is  not  a  party  f  so  the  surety  may  show  the  note  was  given  for 
goods  which  were  never  delivered,*  or  that  it  has  been  paid  by 
the  sale  of  property.'  In  a  suit  by  an  accommodation  indorser, 
who  has  paid  the  note,  to  recover  from  the  maker  the  amount 
paid,  it  is  no  defense  for  the  maker  to  show  he  had  a  demand 
equal  to  the  note  against  the  holder,  which  the  plaintiff  knew, 
and  that  the  plaintiff,  nevertheless,  paid  the  note  without  defend- 
ant's consent,  and  without  suit  brought  thereon."  In  a  late  English 
case  to  a  declaration  against  the  defendant  as  maker,  the  defendant' 
pleaded,  on  equitable  grounds,  that  it  was,  as  plaintiff  knew,  the 
joint  and  several  note  of  himself,  as  surety  only,  and  R.  to  secure 
a  debt  from  R.  to  plaintiff;  that  when  R.  died  before  action  plain- 
tiff had  become  without  defendant's  consent  indebted  to  R.  in  a 
set-off  in  full,  which  still  existed,  and  had  thereby  prevented  him- 
self from  recovering  on  the  note  from  R.  or  his  representatives ; 
and  that  the  note  became  dne  in  R.'s  life;  that  plaintiff  became 
indebted  to  R.  thus  —  plaintiff  and  R.  were  partners,  and  plaintiff 
sold  R.  his  share  in  the  debts  due  to  the  partnership,  the  note 

1  Gillespie  v.   Torrence,  7  Abb.  4G2,  Waterman  on  Setoff  (1st  ed.),  287,  § 

4  Bosw.  36,  25  N.  T.  306  ;  Lafarge  v.  237,  fi!  seq 

Halsey,  4  Abb.  397, 1  Bosw.  171 ;  TyUr  *  People  v.  Brandreth,  36  N.  Y.  194- 

V.  Stevens,  11   Barb.  485:  Camden  v.  IdC) ;  Pern/ x.  C7iester,  12  Ahh  N.  S.  131. 

Doremus,  3  How.  (U.  S.)  515  ;  Ernst  v.  »  Lafarge  v.  Ilalsev,  4  Abb.  397. 

Kunkle,  5  Ohio  St.  521 ;  Lewis  v.  Mc-  «  Newell  v.  Salmons,  22  Barb.  647. 

Millen,  41   Barb.   420 ;    Thompson   v.  '  Seroqqin   v.   Holland,  16   Missouri 

Hooker,  4  N.  Y.  Leg.  Obs.  17  ;  Delano  (1  Bennett),  419. 

V.  Rnwson,  10  Bosw.  286.  "  Snioyer  v.  Chambers,  43  Barb.  623. 

"  Beers  v.  Waterbury,  8  Bosw.  397.  '  Tyler  v.   Stevens,  11     Barb.    485  ; 

'  Gilli'spie  V.  Torrence,  25  N.  Y.  306,  Hnrtlet/  v.    Tathnm,  24  How.  505,  26 

311,  2  Story's  Eq.  Jur.,  4^5^  1437,  1442  ;  id.  158,  10  Bosw.  273. 

Eannay  v.  Pell,  3  E.  D.  Smith,  432  ;  '"  Rawson  v.  liatoson,  105  Mass.  214. 


BEO.  IV.]  COUJ^TER-CLAIM.  623 

being  made  to  secure  the  payment  of  the  price,  and  then  received 
part  of  such  debts  himself,  and  that  defendant  joined  in  makino- 
the  note,  relying  on  the  sale  and  that  plaintiff  would  allow  R.  to 

receive  the  debts.     Held  a  good  plea.'] 
[*558J       *  The  jurisdiction  of  the  court  extends  to  equitable  as 

well  as  legal  off-sets."  But  an  equitable  set-off  must  be 
such  an  equity  as  can  be  enforced  by  judicial  action ;  not  one  aris- 
ing merely  from  moral  considerations.'  The  right  to  set  off  a 
demand  against  an  assignee  has  not  been  affected  by  the  Code. 
Section  112  was  intended  to  preserve  the  rights  of  defendants,  in 
cases  where  the  suit  is  prosecuted  in  the  name  of  the  assignee,  in 
the  same  manner  as  formerl3\  So,  also,  the  rights  of  an  assignee 
are  to  be  protected  from  set-offs  against  the  assignor  after  notice, 
etc.,  as  under  the  former  practice.* 

But  in  the  case  of  Gleason  v.  Moen,"  above  cited,  in  the  ISTew 
York  superior  court,  it  is  held  that  a  defense  existing  against  an 
assignor  before  notice  of  assignment,  under  section  112,  is  not 
strictly  a  counter-claim,  although  it  may  be  a  valid  defense.'  The 
counter-claim,  defined  by  the  Code,  was  thought  to  embrace  only 
causes  of  action  existing  against  the  plaintiff  on  the  record,  and 
on  which,  under  the  old  system,  an  action  at  law,  or  a  bill  in 

equity,  could  have  been  maintained  against  him  at  the 
[*559]  suit  *  of  the  defendant,  according  as  the  matter  was  one 

of  legal  or  equitable  cognizance.  Failure  of  consideration 
in  a  promissory  note,  transferred  after  it  became  due  or  set  off, 
etc.,  though  it  may  be  pleaded  as  a  valid  defense  in  a  suit  brought 
by  the  assignee,  is  not,  according  to  this  doctrine,  a  counter-daim 
which  requires  a  reply.  In  a  suit  brought  by  an  executor  in  his 
own  name,  on  a  note  given  to  him  as  executor  for  a  debt  due  to 
the  testator  at  the  time  of  his  death,  the  defendant  cannot  set  off 
a  demand  which  existed  against  the  testator  in  his  life-time/  [If 
one,  to  whom  property  is  pledged,  employ  the  owner  to  sell  it, 
and  he  sell  it  to  one  who  has  notice  of  the  pledgee's  lien,  he 

'  Ber.hervaue  v.  Lewis,  2  Ens:.  Rep.  '  3  Duer,  639. 

684;  20  Weekly  Rep.  726,  Comr PI.;  41  «  VaHsear  v.   LivinffHon,  13   N.  Y. 

L.  J.,  N.  S.,  C.  P.  161.  252  ;  Fcrreira  v.  Depew,  4  Abb.  131 ; 

^  Miller  v.  Losee,  9  How.  Pr.  360.  Duncan    v.    Stanton,    30    Bavb.   5::]6  • 

*  Van  Pelt  v.  Boyes,  8  How.  Pr.  319.  Roberta  v.  White,  2  Rob.  422  ;  Thamp 

*  Berkwith  v.  JJmon  Bank,  4  Sandf.  son  v.  Sickels,  46  Barb.  49  ;  Mcllmin  v 
604,  atlirmed  by  Ct.  of  Appeals  {Lowell  Edgerton,  2  Rob.  422. 

V.  Lav.e,  33  Barb.  292].  '  Merritt  v.  Seaman,  2  Seld.  168. 


624  THE  ANSWER.  [CH.  V, 

cannot,  when  sued  for  the  purchase  price,  interpose  a  set-off  or 
counter-claim  against  the  owner ; '  otherwise  if  the  facts  were  not 
known  to  the  purchaser.''] 

2.  As  to  matters  in  recoupment  of  damages.  —  At  common 
law,  no  right  of  set-off  existed,  it  being  the  object  of  the  system 
to  confine  every  suit  to  the  particular  subject  of  litigation  which 
gave  rise  to  it.  The  origin  of  the  rights  is  to  be  traced  to  the 
courts  of  equity  and  the  civil  law  where  it  was  recognized  under 
the  name  of  compensation.'  In  process  of  time,  however,  and  by 
means  of  legislation,  this  innovation  upon  the  strict  doctrines  of 
the  common  law  was  brought  about,  and  the  equitable  principle 
introduced  by  which  a  defendant,  instead  of  being  driven  to  a 
separate  suit  to  establish  his  demand  against  the  plaintiff,  might 
set  it  up  in  an  action  on  contract,  and  litigate  it  in  the 
[*560]  same  *suit,  when  such  demand  also  arose  on  contract, 
existed  between  the  same  parties  and  was  liquidated. 
The  rule,  however,  did  not  extend  to  unliquidated  damages,  as,  in 
an  action  or  contract  for  the  price  of  the  thing  sold,  the  defendant 
could  not  assert  his  set-off  or  counter-claim  for  damages  arising 
from  a  breach  of  the  plaintiff's  contract  or  warranty,  which  formed 
a  part  of  the  same  transaction ;  nor,  originally,  did  it  extend  so 
far  as  to  allow  the  defendant  to  set  up  or  recoup  his  damages, 
arising  from  the  plaintiff' 's  negligence,  or  fraud,  etc.,  in  the  execu- 
tion of  the  contract  on  which  the  suit  was  brought;  but  the 
defendant  was,  in  all  cases,  driven  to  his  cross-action. 

The  equity  doctrine,  however,  was  in  time  extended  to  include 
the  latter  class  of  cases.  The  same  reasons,  says  Mr.  Sedgwick  in 
liis  Treatise  on  Damages,  which  operated  to  introduce  the  original 
doctr.Mie  of  set-off,  have  tended  to  enlarge  it;  and  the  severity  of 
the  statute  has  introduced  the  doctrine  of  recoupment.*  The 
doctnne  is  ^ory  fully  and  accurately  traced  by  this  writer,  in  its 
origin  and  development  in  the  courts  of  England  and  our  own 
country,  and  it  is  shown  that,  while  it  originally  merely  implied  a 
deduction  from  the  plaintiff's  demand,  arising  from  payment,  in 
whole  or  in  part,  or  from  recovery,  or  some  analogous  fact,  it  is 
now   understood  to    embrace    counter-claims  of  the   defendant, 

'  IsotUhohm  V.  Mana,  3  Rob.  249.  '  Sedg.  on  Damages,  456,  457. 

-  Bll-iH  V.  Bliss,  7  Bosw.  339.  ■*  Sedg.  on  Damages,  457. 


SEC.  TV.]  •  COUNTER-CLAIil.  625 

[*5G1'1  and  to  be,  in  short,  a  kind  of  irregular  and  *  unliquidated 
set-off,  whicli  lias  crept  in,  notwithstanding  the  rigorous 
terms  of  the  statute.^  Thus,  negligence  and  badness  of  materials 
were  originally  held  to  be  defenses  to  an  action  for  a  stipulated 
snm  agreed  to  be  paid  for  the  work  ;  but  the  defendant  must 
resort  to  his  cross-action.  But  this  was  very  soon  overnded,  and 
the  contrary  established.  And  though  it  was  admitted  that  the 
defendant  could  not,  in  an  action  on  contract  for  labor  at  a  stipu- 
lated price,  claim  damages  strictly  by  way  of  set-off  for  a  breach 
of  the  implied  cont/ract  that  the  work  should  be  faithfully  per- 
formed, yet  he  might  prove,  in  recoupment  or  mitigation  of 
damages,  the  unskillful  or  unfaithful  performance.'  Upon  the  same 
principle,  recoupment  of  damages  was  allowed  in  case  of  fraud.' 
But  it  was  still  contended  that  the  principle  was  not  applicable 
to  the  case  of  a  hona  fide  warranty,  and  that  such  unliquidated 
damages  arose  strictly  on  contract,  and  could  not  be  set  off  in  an 
action  for  the  price  of  the  article  sold.  This  question  was  fully 
considered  in  this  State,  and  finally  settled  in  Reab  v.  McAllister* 
which  has  since  been  regarded  as  a  leading  case  on  this  subject, 
and  such  unliquidated  damages  held  to  be  a  proper  counter-claim 
in  the  same  action,  on  the  principle  of  recoupment. 

The  reason  given,  in  Reab  v.  McAllister,  for  extending 
[^502]  the  equitable  principle  of  set-off,  and  permitting  *  such 
defenses  is  to  avoid  circuity  of  action.  "  A  second  litiga- 
tion on  the  same  matter,"  says  the  court,  "  should  not  be  toler- 
ated, when  a  fair  opportunity  can  be  afforded  by  the  first  to  do 
final  and  complete  justice  to  the  parties."  Precisely  the  same 
reason  is  given  by  the  connnissioners  of  the  Code  for  extending 
the  equitable  defense  by  "  counter-claim  "  tar  beyond  what  it  was 
before  in  courts  of  law,  under  the  most  liberal  class  of  decisions, 
namely,  to  prevent  "the  inconvenience  of  having  several  law 
suits  where  one  would  answer  the  purpose."  "  And  under  the 
provision,  heretofore  noticed,"  that  by  the  Code,  in  an  action  on 
contract,  unliqtcidated  damages  on  contract  between  the  same 
parties  may  be  set  oft',  no  matter  whether  such  contract  relate  to 

>  Sed^.  on  Damages,  chap.  17.  "  4  Wend.  483,  8  id.  109. 

2  14  Johns.  378,  8  id.  453,  2  Wend.  *  See  report  of  commissioners,  com- 

431  plete,  pp.  267,  268. 

'  'l3  Johns.  302.  3  Wend.  286.  *  Ante,  p.  554,  marg.  p. 

79 


626  THE  ANSWER.  '  TCH.  V. 

the  subject-matter  of  the  suit  or  not,  such  a  defense  as  thL,t  set  up 
in  Reab  v.  McAllister  and  kindred  cases  is  a  set-qf,  and  is 
governed  by  the  same  principles  which  governed  what  was  strictly 
and  properly  a  set-off  before  the  Code. 

[Where  cement  was  purchased  to  pass  inspection  by  an  United 
States  inspector,  and  it  did  not,  held,  that  it  was  the  duty  of  the 
purchaser  to  offer  to  return  it,  and  not  having  done  so,  he  had  no 
claim  against  the  seller.'] 

Recoupment  proper,  as  understood  in  the  light  of  the  more 

recent  decisions,  was  in  the  nature  of  a  claim  or  right  constituting 

in  itself  the  ground   of  a  cross-action."     Though,  as  we 

[*563]  have  elsewhere  *  seen,'    it  may  be  pleaded    under  the 

Code,  although  not  claimed  as  a  full  defense  to  the  action, 

yet  it  was  never  pleaded  in  bar  under  the  old  system." 

It  was  always  founded  on  a  contract ;  the  right  of  the  plaintiff 
to  sue  was  admitted,  and  the  defendant,  instead  of  bringing  a  new 
action  against  the  plaintiff  for  damages  sustained  by  reason  of  a 
breach  of  another  branch  of  the  same  contract,  or  by  reason  of  the 
plaintiff's  negligence  in  the  execution  of,  or  fraud  in  contracting 
it,  was  permitted  in  the  same  action  to  recoup,  that  is,  cut  off,  or 
keep  back,  so  much  of  the  plaintiff's  claim.  If  the  defendant's 
damages  exceeded  those  of  the  plaintiff,  he  was  necessarily  driven 
to  his  cross-action,  for  he  could  have  no  affirmative  relief,  recoup- 
ment being  in  mitigation  of  damages  merely,  or  in  defeat  of  the 
action,  so  that  no  balance  could  be  certified  in  favor  of  the 
defendant.'  The  defendant,  it  was  said  in  Batterman  v.  Pierce* 
might  recoup  "  where  the  demands  of  both  parties  spring  out  of 
the  same  contract  or  transaction,  although  the  damages  on  both 

'  Delafield  v.    DeOrauw,   3    Keyes,  stood.     See  ante,  p.    .     The  question 

467.  is  now  of  practical  importance  only  so 

**  In  tlie  case  of  Knexdler  v.  Stern-  far  as  it   respects  the  necessity  of  a 

"burqli,  10  How.  G7,  it  was  endeavored  reply,  etc.,  to  matter  so  pleaded  ;  and 

to   be  shown  that  recoupment  is  not  I  ajrree  that  the  text  in  this  respect  is, 

always   a   subsisting  claim;    that    is,  that  the  matter  so  pleaded  must  of  itself 

that  a  party  has  not  always  a  cause  of  constitute  a  claim  —  looking  to  affirma- 

action    for    such   matters"  as   may  be  tive  relief  —  or  which  might  have  been 

proved   in   recoupment;    and,  in  such  the  subject  of  a  cross-action,  no  matter 

cases,  itisnotaco«««er-^toV»  underthe  whether    technically    it    could     have 

Code.      This    doctrine    seems    to    be  been  called  recoupment  or  not. 

strictly  correct,  as  is  evident  from  the  ^  See  ante,  p.  457,  marg.  p. 

earlier    English    cases   cited    by    Mr.  ''  2  Comst.  282. 

Sedgwick,    and    the    nature    of    tliis  ''  11  Wend.  257. 

defense    as   it    was  originally  unil.  r-  •*  3  Hill,  171,  per  Bronson,  J. 


8EC.  IV.]  COUNTER-CLAIM.  627 

sides  are  unliquidated ;"  though  in  Cram  v.  Dresser j-  the 
[*564]  word  "transaction,"  as  here  used,  *was  said  to  denote 
nothing  more  than  the  contract  itself  and  its  accessories, 
and  the  superior  court  of  JSTew  York  refused  to  allow  the  tenant, 
in  an  action  to  recover  rent  on  a  lease,  to  recoup  damages 
occasioned  by  tortious  acts  of  the  landlord's  servant  entering  to 
make  repairs  under  a  stipulation  to  that  effect  in  the  lease.  The 
injury,  it  was  said,  did  not  arise  out  of  the  breach  of  any  covenant 
or  stipulation  of  the  contract  which  was  the  foundation  of  the 
suit."  The  definition  used  by  the  Code  is  still  broader  than  that 
in  Batterman  v.  Pierce^  or  indeed,  in  any  adjudged  case  in  this 
State,  and  would,  it  is  thought,  admit  such  a  defense  as  was  shut 
out  in  Cram  v.  Dresser^  supra.^  The  language  is,  "  arisinty  out 
of  the  contract  or  transaction  set  forth,  etc.,  or  connected  with  tJie 
subject  of  the  action.^''  The  words  in  italics  are  somewhat  vao-ue 
and  indefinite.  It  is  difficult,  in  the  absence  of  any  judicial 
construction,  to  say  how  far  they  were  intended  to  extend, 
and  whether  designed  merely  as  a  qualification  of  the 
[*565]  ^clause  immediately  preceding,  or  whether  as  an  independ- 
ent proposition,  allowing  any  defense,  no  matter  whether 
arising  out  of  the  contract  or  not,  so  that  it  be,  however  remotely, 
"  connected  with  the  subject "  matter  of  the  action.  I  should  be  slow 
to  believe  the  latter  could  have  been  intended,  as,  for  example,  that 
in  an  action  for  the  price  of  land  sold,  the  defendant  could  set  up 
a  trespass  by  the  plaintiff  at  a  subsequent  time  on  the  same  lands, 
or,  in  an  action  to  recover  the  possession  of  personal  property,  the 
defendant  could  set  up  and  claim  judgment  upon  a  promissory 
note  given  by  the  plaintiff  for  the  same  property.  The  words, 
"subject  of  the  action,"  should,  perhaps,  be  construed  not  as 

'  2  Sandf.  225.  the  issues  were  joined.  In  the  late 
'  And  see  this  same  question  dis-  case  of  Drake  v.  Oockroft,  in  the  N.  Y. 
cussed,  and  authorities  cited,  in  Mayor  Com.  PI.,  1  Abb.  Pr.  203, 10  How.  877, 
of  Neio  York  v.  Mabie,  2  Duer,  401.  the  tenant,  in  a  suit  for  rent,  attempted 
Sue,  also,  Drake  v.  Cockroft,  1  Abb.  Pr.  to  set  up,  as  a  counter-claim,  damages 
208.  arising  from  trespasses  committed  by 
^  This  is  made  the  subject  of  a  qnere  the  plaintiff  on  other  premises  hired  by 
in  Mayor  of  New  York  v.  Mahie,  2  the  defendant  of  the  plaintitF  simul- 
Duer,  401,  which  sustains,  in  all  re-  taneously  with  the  leasing  of  the 
Bpects,  the  case  of  Cram  v.  Dresser;  premises  for  the  rent  of  which  suit 
but  as  the  pleadings  had  been  put  in  was  brought;  and  this  was  very  prop- 
before  the  amendment  of  the  Code  in  erly  regarded  as  not  constituting  a 
relation  to  counter-claims,  the  case  was  valid  counter-claim. 
decided  by  the  law  as  it  stood  when 


(528  THE   ANSWER.  [CH.   V. 

relating  to  the  thing  itself  about  which  the  controversy  has  arisen, 
but  as  referring  rather  to  the  origin  and  ground  of  the  plaintiif 's 
right  to  recover,  or  obtain  the  relief  he  asks.  Any  thing  'neces- 
sarily connected  with,  that  is,  growing  out  of,  or  the  direct  result 
of,  the  contract,  or  the  transaction  which  the  plaintiff  alleges  as 
the  ground  ot  his  demand,  may,  if  a  proper  subject  for  a  cross- 
action  by  the  defendant,  be  set  up  as  a  counter-claim ;  but  the 
defendant  should  be  able  to  trace  the  origin  of  his  right  or  claim 
for  relief  to  the  transaction  itself,  which  furnishes  the  plaintiff  his 
ground  of  action.*  The  "  subject  of  the  action,"  in  a  suit  to 
recover  real  property,  is  not  the  laoid  itself,  but  the  possession. 
In  an  action  for  the  price  of  a  chattel,  the  "  subject  of  the  action  " 
is  not  the  chattel,  but  the  contract  for  its  sale.  A  subse- 
[■^^566]  quent  '^  injury  by  the  plaintiff  to  the  chattel  itself  would 
not,  therefore,  if  this  position  is  correct,  be  a  counter-claim 
"  connected  with  the  subject  of  the  action,"  which  the  defendant 
might  set  up  in  his  defense.  The  claim  must  be  connected  with 
the  contract  of  sale.  The  conclusion  drawn  from  this  view  of 
the  case  is,  that  the  words,  ^^  connected  vnth  the  subject  of  the 
action,''^  as  used  in  the  section  of  the  Code  under  consideration, 
are  used  merely  to  qualify  the  words  which  immediately  precede 
them.  Though  the  effect  of  the  whole  section,  therefore,  is,  no 
doubt,  as  the  commissioners  express  it,  "  to  open  the  door  still 
wider  and  admit  many  cross-demands  now  excluded,"  yet,  it  could 
not  have  been  intended  to  admit  distinct  and  independent  torts  to 
property,  or  other  claims  for  damages,  to  be  set  up  as  defenses  in 
actions  on  contract,  or  other  actions  affecting  the .  same  property, 
where  such  defenses  do  not  arise  out  of  some  part  of  the  trans- 
action which  the  plaintiff  alleges  as  the  ground  of  his  demand. 

One  of  the  objects  of  the  provision  of  the  Code  under  consid- 
eration, indeed,  seems  to  be  to  adopt  and  extend  to  all  actions  the 
principle  of  equitable  set-off,'  as  it  was  formerly  recognized  in 
certain  cases  in  the  chancery  practice,  borrowed  from  the  civil 
law.  Thus,  though  as  a  general  rule  the  court  of  chancery  fol- 
lowed the  rule  of  law  in  regard  to  set-offs,  yet,  if  the  couii; 
[*5G7]  found  a  case  of  natural  '"  equity,  not  within  the  statute,  it 

'  HicksvUle,  etc.,  v.  Long  Island,  'iic.,  48        *  8  How.  Pr.  319,  9  id.  360. 
Barb.  355  ;  Lane  v.  Bailey,  47  i<l.  395  ; 
Mayor  v.  Wood,  4  Abb.  N.  S.  3:>i. 


SEC.  IV.]  COUNTER-CLAIM,  629 

permitted  an  equitable  set-off,  if,  from  the  nature  of  the  claim, 
or  from  the  situation  of  the  parties,  it  was  impossible  to  obtain 
justice  by  a  cross-action.'  Where,  for  example,  there  were 
mutual  demands  between  the  parties,  which  could  not  be  set  off 
mider  the  statute,  but  w4iich  a  court  of  equity  might  cotnpensate, 
or  apply  in  satisfaction  of  each  other  without  interfering  with  the 
equitable  rights  of  any  person,  the  fact,  that  one  of  the  parties 
was  insolvent,  has  frequently  been  held  a  sufficient  ground  for  the 
exercise  of  the  equitable  jurisdiction  of  the  court  of  chancery ; ' 
[otherwise  if  it  have  been  assigned  before  due.^]  And  this  natural 
equity  has  been  recognized  in  cases  where  the  law  could  not  give 
a  remedy  in  a  separate  suit  even  before  the  statute."  So,  also,  in 
equity,  if  the  defendant's  claim  arose  "  out  of  the  same  transac- 
tion," or  contract,  so  that  the  plaintiff  in  equity  had  no  right  to 
recover  against  him,  the  court  of  chancery  would  make  compen- 
sation. The  practice,  in  that  i*espect,  is  stated  by  Chancellor 
Walworth  as  follows :  ^  "  If  a  defendant  in  a  court  of  law  has  a 
distinct  and  separate  demand  against  the  plaintiff,  which  is  not  a 
proper  subject  of  set-off  there,  he  cannot,  generally,  come  into 
this  court  for  relief,  unless  the  plaintiff  is  insolvent.  His  proper 
course  is  to  pay  the  plaintiff's  demand,  and  then  prosecute 
[*568]  for  his  own  ;  but  *  if  his  claim  arise  out  of  the  same  trans- 
action or  contract  as  that  of  the  plaintiff,  so  that  in  equity 
the  plaintiff  never  had  any  right  to  recover  against  him,  if  the 
defendant  cannot  avail  himself  of  his  claim  as  a  defense  at  law,  he 
may  come  into  this  court  for  relief.  He  is  not  obliged  to  pay  an 
unjust  demand,  although  he  may  recover  back  a  greater  amount 
in  damages  in  a  suit  instituted  by  himself."  The  Code  seems  to 
have  made  this  equitable  rule  universal,  and  to  have  extended  it 
indiscriminately  to  all  classes  of  action,  and  without  reference  to 
legal,  as  contradistinguished  from  equitable,  relief. 

But  though  there  may  be  a  set-off  of  separate  and  independent 
contracts,  yet  there  can  be  no  recoupment  of  damages,  properly  so 
called,  growing  out  of  one  contract  against  a  demand  arising  on 
another.     This  has  been  so  held  under  the  Code,  in  Deming  and 

'  2  Vern.  117,  6  Mad.  95.  felin  v.  Hawkins,  1  Daly,  290,  14  Abb. 

«  1  P.  Wins.  335,  4  Conn.  303.  112. 

'  ^ri/era  v.  Dams,  23  N.Y.  489  ;  Mackey        ^  Lindsay  v.  Jackson,  2  Paige,  581. 
t.   Macke.y,  48   Barb.   60;    Martin  v.        ^  Reedy.  Bank  of  NeiDburgh,\'Pa\g&, 

Keemmuiler,  10  Bosw.  19.     See  t'chicf-  213. 


630  THE  AlfSWER.  [CH.  V. 

Colt  V.  Kemjp^  at  a  general  term  of  the  New  York  superior 
court,  where,  under  a  parol  contract  for  the  future  delivery  of  a 
fixed  quantity  of  goods  at  such  times  and  in  such  parcels  as  might 
be  required,  in  an  action  for  the  price  of  the  parcel  last  furnished 
the  buyer  was  not  allowed  to  recoup  for  his  damages  growing  out 
of  the  inferior  quality  of  the  goods  previously  delivered.  The 
separate  deliveries  were  considered,  in  their  nature,  as  distinct  acts 
and  separate  contracts.     And  though,  in  an  action  on  a  sealed 

instrument,  such  as  a  bond,  as  well  as  an  unsealed  instru- 
[*569]  ment,  the  defendant  may  *  recoup  his  damages  arising  out 

of  fraud  in  the  consideration  for  which  such  instrument 
was  executed,"  yet,  in  an  action  to  foreclose  a  mortgage  given  as 
security  for  such  bond,  the  defendant  cannot  set-off  or  recoup 
damages  on  account  of  an  alleged  fraud  practiced  upon  him  in 
relation  to  the  same  premises,  after  the  execution  of  the  bond  and 
mortgage.  This  is  not  a  part  of  the  same  transaction  nor  con- 
nected with  the  subject  of  the  action.     So  held  in  Reed  v.  Latson* 

at  a  general  term  of  the  court  in  the  4th  district. 

....  .     .  .     .  * 

Under  the  foregoing  limitations,  and  within  the  principles  here- 
tofore laid  down,  as  in  the  case  of  set-otf,  any  matter  may  now  be 
given  in  recoupment  of  damages  which  exists  in  favor  of  a  defend- 
ant, and  against  a  plaintiff,  between  whom  a  several  judgment 
may  be  had.  And  if  the  defendant's  damages  exceed  the  plain- 
tiff's demand,  he  may,  doubtless,  within  the  meaning  of  section 
274,  as  amended,  have  a  judgment  for  the  balance. 

Other  subjects  of  cross-action  and  for  specific  relief. —  The 
section  under  consideration  is  broad  enough  to  include  every 
variety  of  claim,  wliether  legal  or  equitable,  which  the  defendant, 
within  the  limits  above  mentioned,  may  have  against  the  plain- 
tiff, and  of  which  on  his  part  he  could  have  availed  himself  in  a 
separate  action.  Thus,  in  an  action  founded  on  a  legal  title  to 
recover  the  possession  of  land,  the  defendant  may  now 
[*5T0]  set  up  an  equitable  *  right  to  a  conveyance  from  the 
plaintiff,  and  if  he  prove  himself  equitably  the  owner, 
with  right  of  possession,  and  entitled  to  the  conveyance  from  the 
plaintiff,  he  will  not  only  defeat  the  action  but  may  obtain  hia 
affirmative  relief.* 

'  4  Sandf.  147.  *  15  Barb.  S.  C.  9. 

«  5  Hill.  63.  *  Crary  v.  Qoodinan,  12  N,  T.  266; 


SEC.  IV.]  COUNTER-CLAIM.  631 

In  Otis  V.  Sill,^  it  was  denied  that  a  specific  lien  on  property 
could  be  enforced  in  an  action  for  taking  the  same  property,  or 
that  such  a  defense  could  be  set  up  in  such  an  action,  the  remedy 
being  purely  equitable.  But  now,  in  such  an  action,  a  defendant 
may  set  up  his  lien  in  defeat  of  the  plaintiff's  right  to  recover 
and  claim  its  enforcement,  precisely  as  he  might  heretofore  have 
obtained  such  relief  by  a  suit  in  equity." 

In  Averill  v,  Taylor^''  it  was  intimated,  but  not  decided,  that 
in  an  action  to  restrain  a  statute  foreclosure  of  a  mortgage,  and 
to  have  the  bond  and  mortgage  delivered  up  and  canceled,  the 
defendant,  if  he  succeeded  in  his  defense,  might  have  a  judgment 
for  the  foreclosure  of  the  mortgage.  This,  it  is  certain,  he  may 
now  have.  So,  too,  the  converse  would  be  true,  that  in  an  action 
to  foreclose  a  mortgage,  a  defendant  may  set  up  facts  showing 
himself   equitably  entitled   to   have    the   bond    and    mortgage 

delivered  up  and  canceled. 
[*571]  *  So  also  in  an  action  to  recover  back  money  paid  on  a 
contract  for  the  sale  of  lands,  the  defendant  may  set  up 
the  contract,  and  the  fact  showing  his  full  performance,  not  only 
in  defeat  of  the  action,  but  as  the  ground  of  his  own  claim 
against  the  plaintiff  for  a  specific  performance  of  the  contract. 
And,  in  an  action  for  breach  of  a  covenant  in  a  deed,  or  condition 
in  an  agreement,  the  defendant  may  set  up,  by  way  of  counter- 
claim, a  mistake,  etc.,  in  the  instrument  on  which  the  action  is 
founded,  and  demand  that  it  be  reformed  or  corrected ;  and  the 
affirmative  relief  sought  will  be  administered  in  the  same  action. 
This,  it  was  held  by  the  court  of  appeals,  could  not  be  done  prior 
to  the  late  amendmeuts.*  In  a  case,  not  reported,*  a  plaintifl" 
demanded  an  injunction  against  a  defendant  to  restrain  him  from 
turning  the  course  of  a  creek  through  a  portion  of  a  farm,  sold 
by  defendant  and  others  to  the  plaintiff,  and  claimed  damages  for 
digging  part  of  a  new  channel  for  the  creek ;  and  the  defendant 
set  up  and  insisted  upon  the  defense  that  the  part  of  the  farm 
through  which  he  sought  to  turn  the  course  of  the  creek  was  not 

Carpenter  v.  Ottley,  3  Lana.  455  ;  Dohson        '  9  Barb.  S.  C.  103. 

V.  Pearce,  13  N.  Y.  16G,  1  Abb.  103 ;        '  Himnan  v.  Judson,  13  Barb.  G29. 

Dishard  v.  Walbridge,  15   N.  Y.    379  ;        ^  5  How.  Pr.  476. 

mcksville,  etc.,  v.  Long  Island,  etc.,  48        *  Haire  v.  Baker,  1  Seld.  357. 

Barb.  355;  Phillips  v.   Oorham,  17  N.        ^  Sharp  v.    Warner,  Albiinv  spe  ial 

Y.  370.  term,  June,  1854. 


682  THE  ANSWER.  [CH.  V. 

iutcnded  to  be  conveyed  in  the  deed,  but  that,  if  embraced  there- 
in bj  the  terms  of  the  instrument,  the  same  was  by  mistake,  and 
asked  conditional  relief,  by  way  of  counter-claim,  that  the  deed  be 

reformed  and  corrected.  On  a  motion  to  strike  out  this 
[*572]  defense,  as  being  irrelevant  and  not  amounting   *  to  a 

counter-claim,  Justice  Harris  denied  the  motion,  and 
without  expressing  an  opinion  as  to  the  ultimate  validity  of  the 
defense,  held  that  the  defendant  was  entitled  to  have  it  retained 
until  the  trial.  This  was  before  the  amendment  allowing  a 
demurrer  to  an  answer.  The  question  upon  the  validity  of  such 
a  defense  could  now,  doubtless,  be  raised  by  demurrer ;  and  so, 
also,  in  regard  to  such  a  defense  as  was  set  up  in  Gleason  v. 
Moen.^ 

[The  following  have  been  held  to  be  counter-claims."  In  an 
action  to  recover  rent  the  amount  paid  by  a  tenant  in  making 
repairs  which  the  landlord  covenanted  to  make ; '  money  lost  in 
betting."  In  an  action  to  rescind  a  contract  for  a  lease  the  land- 
lord may  set  up  a  counter-claim  for  rent  of  the  premises.*  Expen- 
ses' paid  in  recovering  gdods  abandoned  under  an  insurance 
policy.*  In  an  action  to  recover  the  amount  loaned  on  stock 
every  sum  paid  or  to  be  credited  on  the  account  thereof.^  In 
cases  of  recoupment  the  defendant  may  recover  tlie  excess  of  his 
claim  beyond  that  of  the  plaintiff.'  A  bank  with  whom  assignees, 
for  the  benefit  of  creditors,  have  deposited  the  proceeds  of  sales  of 
assigned  property  after  it  has  exhausted  its  remedy  by  judgment 
and  execution  may,  when  sued  for  such  proceeds,  set  up  as  a 
counter-claim  that  the  assignment  was  fraudulent  as  against 
creditors,  and  their  right  to  be  paid  out  of  the  proceeds  in  the 
hands  of  the  assignees."  It  is  matter  of  recoupment  that  the 
owner  of  a  house,  formerly  kept  as  a  house  of  ill-fame,  lets  it, 
representing  it  to  be  a  good  place  to  keep  boarders,  and  without 
disclosing  such  fact,  if  the  tenant  be  annoyed  by  persons  of  ill 
repute  coming  at  all  times  of  night  and  endeavoring  to  get  in,  so 

»  2  Duer.  639.  '  Mayor,  etc.,  v.  Wood,  4  Abb.  N.  S. 

*  The  reader  should  consult  Wait's    332. 

and  Voorhies'  Codes  and  notes  to  §        "  Rohinson  v.  Corn  Exchange,  1  Abb. 

150.  N.  B.  186. 

3  Myers  v.  Burns,   35    N.  Y.  269  ;        •"  Durant  v.  Einstein,  35  How.  224. 
Ward  V.  Gove,  38  id.  80.  «  Boston  Silk,  etc.,  .v.  Bull,  37  How. 

*  McDougall  v.  Walliny,  48  Barb  864.  299,  6  Abb.  N.  S.  319. 

*  Lawrence  v.  Bank,  3  Rob.  142. 


SEC.  IV. J  COUNTER-CLAIM.  633 

that  boarders  decline  to  stay.'  In  an  action  for  rent  defendant 
may  interpose  a  counter-claim  for  damages  done  to  bis  goods  by 
Boot  from  plaintiff's  furnace,  erected  in  the  basement."  So  in  a 
suit  for  moneys  collected  by  an  insurance  agent  he  may  set  up 
that  plaintitf  employed  him  for  a  year  and  improperly  discharged 
him  before  its  expiration,  whereby  he  was  damnified.'  So  in  a 
suit  to  foreclose  a  mortgage  defendants  may  set  up  that  plaintiff, 
on  giving  it,  agreed  to  release  a  portion  of  the  premises  on  pay- 
ment of  a  certain  amount,  and  had  refused  to  do  so,  whereby  he 
sustained  damages.*  An  answer,  that  plaintiff  agreed  to  act  as 
defendant's  agent  in  purchasing  bonds,  and  to  account  for  money 
placed  in  his  hands,  and  that  after  receiving  a  certain  sum  he 
refused  to  account  therefor,  but  appropriated  it  to  his  own  use, 
sets  up  a  claim  on  contract  and  a  valid  counter-claim/  The  fol- 
lowing have  been  held  not  to  be.  In  an  action  by  a  preferred 
creditor  against  a  general  assignee,  for  the  benefit  of  creditors  for 
an  accounting,  an  answer  by  the  assignee,  setting  up  that  he  had 
incurred  certain  expenses  in  repairing  a  steamboat  belonging  to 
the  estate,  and  in  defending  suits  against  the  boat ; '  in  an  action 
for  conversion  of  property,  that  plaintiff  is  indebted  to  defendant 
in  a  sum  greater  than  the  value  of  such  property.'] 

In  an  action  for  damages  for  a  breach  of  contract  to  convey 
land,  the  defendant  may  set  up  in  defense  a  breach  by  the  plain- 
tiff of  certain  covenants  in  the  contract  of  conveyance,  and  claim 
afiirmative  relief  for  specific  performance.*  In  an  action  of  eject- 
ment, the  defendant  may  set  up  an  equitable  title,  and  claim  the 
conveyance  of  the  legal  estate.'  In  an  action  for  the  partition  of 
land,  the  defendant  may  set  up  his  own  exclusive  title  and  right 
of  possession,  by  way  of  claiming  judgment  in  the  same  action 
for  the  recovery  of  the  possession ;  or  in  a  suit  to  perpetuate  the 

possession  and  enjoyment  of  real  property,  and  confirm  a 
[*573]  title  where  there  has  been  a  loss  or  *•  destruction  of  the 

deed  or  will,  the  defendant  may  deny  the  title  alleged, 

'  Staples  V.  AndRTSon,  3  Rob.  327.  i  Hudet  v.  Eeym,  1  Abb  N.  S.  27. 

*  Ayres  v.  O'Farrell,  4  Rob.  668.  «  Hunt  v.  Fanner.^'  Loan  nnd  Trust 
^  LoriUard,etc.,y.  Meshural,  7  Rob.     Co.  and  Rorfcrs,  8  How.   Pr.  416;  and 

308.  see   ante,  pages   565,   508,    mnrg.  p., 

*  Stanford  V.  Travcru,  40  N.  Y.  140.  eqnUahfp  dflfi'imc  to  leqal  raime  of  nHion 
»  Coit  V.  Stewart,  12  Abb.  X.  S.  216.  »  Dewey  v.  Soag,  15  Barb.  S.  C.  365 

*  Duffy  V.  Duncan,  35  N.  Y.  187. 

0 


634  THE   ANSWER.  [CH.  V. 

and  set  up  liis  own  exclusive  right  of  possession  and  enjoyment. 
And  in  most  cases  where  the  matter  in  defense  was  heretofore 
the  proper  subject  of  a  cross-bill  in  equity  for  relief,  such  matter 
may  now  be  set  up  by  way  of  counter-claim  in  the  action.  Set- 
offs, as  we  have  seen,  were  allowed  in  equity,  as  at  law  by  statute  ; 
but  the  defendant,  if  he  had  any  affirmative  relief  to  obtain, 
founded  on  any  collateral  claim  and  touching  the  matters  in  suit, 
must  get  it  in  the  shape  of  a  cross-suit,  and  could  not  set  it  up  in 
his  answer.  A  cross-bill,  however,  was  generally  considered  a 
defense,  and  the  original  cause  and  cross-bill  but  one  suit ; '  the 
time  for  filing  the  cross-bill  was  at  the  time  of  putting  in  the 
answer,  and  the  defendant  might  have  an  order,  when  both  causes 
were  at  issue,  that  they  be  heard  together."  A  cross-bill  was  only 
necessary  when  the  defendant  was  entitled  to  some  affirmative 
relief.  It  was  held  not  necessary  in  the  foreclosure  of  a  mortgage 
in  fee,  when  the  answer  of  one  defendant  alleged  a  prior  life  estate 
in  himself.'  A  cross-bill  could  not  introduce  new  and  distinct 
matters,  not  embraced  in  the  original  bill ;  *  and  it  was  founded 
always  upon  matters  in  question  in  the  original  suit ;  ^  and 
was  necessary  when  the  defendant  was  entitled  to 
[*574]  *  some  positive  relief  beyond  what  the  scope  of  the  com- 
plainant's suit  would  afford.'  Thus,  to  a  bill  brought  to 
enforce  a  contract,  a  cross-bill  to  rescind  a  different  contract 
respecting  the  same  property  would  not  lie.  But  where  a 
vendor  of  land,  among  other  things  in  his  bill,  asserted  a  lien 
for  the  purchase-money  against  an  assignee  of  his  covenant  for  a 
title,  the  latter  might  maintain  a  cross-bill  for  a  rescission  of  that 
contract.^  It  lay  in  a  suit  for  specific  performance  of  an  agree- 
ment, to  have  the  agreement  delivered  up  and  canceled ;  also 
in  a  bill  filed  •  to  set  aside  an  agreement  or  conveyance,  it  lay 
to  have  the  agreement  or  conveyance  established." 

All  these  various  matters,  which,  under  the  equity  practice, 
were  proper  subjects  for  a  cross-bill,  where  the  object  was  for 
relief  and  not  discovery,  are  supposed  to  be  within  the  definition 
of  the.  term  "  counter-claim,"  as  used  in  the  Code,  and  may  be  set 

'  7  Johns.  Ch.  253,  8  Cow.  361.  "  Mitf.  Eq.  PI.  81,  Coop.  Eq.  PI.  85. 

s  2  Barb.  Ch.  Pr.  129,  135.  *  9  Cowen,  747. 

»  3  Barb.  S.  C.  151.  ^  1  Dana,  589. 

«  Hopk.  48.  «  2  Barb.  Ch.  Pr.  128. 


SEC.  IV.']  COUNTER-CLAIM,  635 

ap  by  the  defendant  in  the  action.  It  will  be  impossible  to 
undertake  a  particular  enumeration  of  the  cases  in  which  the 
cross-bill  might  have  been  proper  in  equity,  or  in  which,  under 
our  present  practice,  the  counter-claim,  which  seems  to  be  its 
substitute,  may  be  used.  The  above  general  remarks  may  serve 
to  give  something  of  an  idea  of  its  nature  and  use.  It  is  to  be 
observed,  however,  that  the  counter-claim,  in  one  respect  at  least, 
is  more  extensive  than  the  cross-bill.  The  latter  would 
[*575]  lie  only  for  *  equitable  relief.  If  it  were  brought  for  a 
mere  legal  title,  which  is  the  subject  of  an  ejectment,  it 
would  be  dismissed.'  This  rule  can  have  no  application  under 
the  system  adopted  by  the  Code. 

A  cross-bill  was  sometimes  necessary  in  adjusting  equities  be- 
tween defendants,  as  where  the  court  could  not  make  a  complete 
decree  without  bringing  every  matter  before  the  court,  to  be  liti- 
gated by  the  proper  parties  and  upon  the  proper  proofs.  In  such 
case  it  became  necessary  for  some  one  or  more  of  the  defendants 
to  file  a  cross-bill  against  the  plaintiff  and  some  one  or  all  of  the 
other  defendants,  and  thus  bring  the  litigated  point  fully  before 
the  court.'*  This,  in  a  proper  case  under  the  Code,  it  seems,  may 
also  be  done  by  answer,'  and,  in  such  case,  the  answer  should  be 
served  upon  the  defendants.* 

So,  also,  the  cross-bill  was  sometimes  resorted  to  of  necessity, 
when,  by  the  rules  of  equity  pleading,  the  defendant  could  not 
avail  himself  of  his  defense  in  any  other  way,  as  in  cases  where 
the  matter  of  defense,  such  as  release,  award,  etc.,  arose  after  suit 
brought  and  issue.  ^     These  matters  of  defense  may  now  all  be 

taken  by  supplemental  answer.* 
[*576]       *And  the  provision,  it  seems,  extends  to  counter-claims 
proper,  as  well  as  to  these  merely  defensive  matters.     It 
is  said,  in  Willis  v.  Chi])])^  "  Any  facts  existing  at  the  time  the 

'  2  Barb.  Cli.  Pr.  128.  arising    after    suit    brought,    though 
«  Story's  Eq.  PI.,  §  392,  Coop.  3q.  85.  under  the  equity  practice  they  could 
^  Bogardus   v.   Parker,  7  How.  Pr.  only  be  interposed  by  cross-bill,  cannot 
305 ;  but  see  Woodworth  v.  Bellows,  4  in  any  sense  be  designated  as  counter- 
id.  24,  and  see  ante,  p.  511.  claims.     In  thi^  respect,  at  least,  the 
•*  Tracy  v.  New  York  Steam  Faucet  cross-bill  in  equity  is  not  identical  with 
Co.,  1  Siiiith's  N.  Y.  Com.  PL  349.  the  counter-claim  of   the  Code.     And 

*  Story's  Eq.  PI.  393,  Coop.  Eq.  PI.  the  same  may  be  said  of  the  cross-bill, 
86,  87.  as  used  for  the  purpose  of  adjusting 

*  Such  defenses,  however,  as  release,  equities  between  defendants, 
eettlement,   award,    bankruptcy,  etc.,  '  9  How.  Pr.  568. 


636  THE  AN-SWER.  [CH.  V. 

defendo/nt  answers,  and  which  show  that  the  plaintiff  ought  not 
to  have  a  judgment  against  the  defendant,  may  be  inserted  in  the 
answer,"  whether  such  defense  arose  before  or  after  suit  brought. 
Perhaps,  however,  a  set-off  must  be  excepted,  which  is  required  to 
consist  of  a  claim  "  existing  at  the  commencement  of  the  action."  * 
A  defendant  is  not  bound,  in  his  answer,  to  set  up  a  demand 
which,  from  its  nature,  is  a  proper  subject  of  a  counter-claim,  but 
he  may  elect  to  enforce  its  recovery  in  a  separate  suit.  He  has, 
at  all  times,  such  an  election  in  relation  to  a  set-off  or  a  recoup- 
ment of  damages,  and  his  rights  in  this  respect  have  not  been 

varied  or  affected  by  the  Code.  ^ 
[*578]  *  Such  defense,  to  be  made  available,  should  be  inter- 
posed to  the  first  action,  which  will  not  be  stayed  in  order 
to  enable  the  defendant  to  establish  his  equitable  title  to  relief  in 
a  subsequent  action.'  And  if  judgment  be  obtained  in  such  first 
action,  it  cannot  be  impeached  by  any  such  equitable  defense, 
existing,  to  the  knowledge  of  the  party,  in  time  to  avail  himself 
of  it  at  the  former  trial.  This  was  so  held  in  equity,  in  the  case 
of  Draper  v.  Gordon^  and  was  also  the  principle  recognized  in 
the  leading  case  of  Le  Guen  v.  Gouverneur  and  Kemhle^  and 
this  seems  to  be  the  extent  of  the  principle,  as  properly  applicable 
under  the  present  system.  But  there  is  nothing  in  the  Code,  or 
in  the  correct  application  of  this  principle,  to  compel  a  defendant, 
in  an  action  against  him,  to  set  up  a  proper  matter  of  counter- 
claim, constituting  in  itself  an  independent  subject  of  action, 
which  may  be  enforced  against  the  plaintiff  as  well  after  as  before 
judgment  obtained  in  the  plaintiff's  suit,  and  without, 
P579]  in  any  *  degree,  impeaching  such  judgment ;  and  this  was 
the  doctrine  ujDon  which  the  case  of  Ilalsey  and  another 
V.  Carter  *  proceeded.  In  sucli  cases,  therefore,  the  plaintiff  may 
proceed  to  judgment  and  execution  in  his  suit,  and  the  defendant, 
if  he  so  elect,  may  subsequently  enforce  his  counter-claim  in  the 
same  way.    Thus,  if  one  partner,  after  di&solution,  sue  another  on 

1  See  post,  §  7,  of  this  chapter,  as  to  323 ;  Siemon  v.  Sehurck,  29  N.  Y.  508, 

whether  such  a  defense,  arising  after  affirming  33  Barb.  9.] 

Buit  brought,  may  be  made  by  supple-  ^  See  JIuitt  v.   Farmfirs'   Loan  a7hd 

mental  answer.  Trust  Co.,  8   How.  416 ;   Dederick  v 

"  IMsey  V.  Carter,  1  Duor,  667  [Gil  Hoysradt,  4  id.  3oO. 

lespi'  V.  Torrance,  25  N.  Y.  306,  afnrm-  ■•  4  Saudf.  Cli.  210. 

ing  4  Bosw.  30;  Peck  v.  Minot,  4  Kob,  ^  1  Johns,  ("as.  435. 

«  1  Duer,  mi. 


SEC.  IV.]  COUNTER-CLAIM.  637 

a  note  for  money  lent,  the  defendant,  by  way  of  counter-claim, 
may,  according  to  the  decision  in  Gage  v.  Angell,^  set  up  the  part- 
nership transaction,  and  demand  an  accounting,  and  that  the 
balance,  certified  in  his  favor,  be  set  off  on  the  plaintiff's  demand. 
Or  he  may,  if  he  prefer,  suffer  judgment  against  him  for  the 
amount  of  the  note,  and  prosecute  his  separate  action  for  an 
accounting,  etc.  And  so  in  regard  to  matters  which  are  properly 
the  subjects  of  set-off  or  recoupment,  etc.  But  he  cannot  inter- 
pose his  defense  in  the  first  suit,  and  at  the  same  time  have  a 
separate  action  on  the  same  matter.''  [If  a  counter-claim  be  set 
up,  and  the  defendant  do  not  appear,  it  will  be  barred.  If  with- 
drawn it  will  not ;  nor  will  it  if  the  parties  stipulate  that  it  shall 
not  be  affected  by  the  judgment.'  Where  an  action  was  com- 
menced to  restrain  a  statutory  foreclosure,  on  the  ground  that  the 
mortgage  was  paid,  and  the  defendant  interposed  the  mortgage  as 
a  counter-claim,  and  demanded  judgment  of  foreclosure  and  sale, 
it  was  held,  after  trial  before  a  referee,  that  the  defendant  could 
not,  by  waiving  his  claim  to  affirmative  relief,  thus  change  the 
issues  joined  so  as  to  deprive  the  plaintiff  of  the  fruits  of  the 
litigation  *  —  a  judgment  that  a  sum  much  less  than  that  claimed 
in  the  statutory  foreclosure  was  due,  and  that  on  payment  of  that 
amount  the  mortgage  be  satisfied.*] 

Counter-dcdm,  how  stated.  —  The  defendant  should  set  forth 
his  counter-claim  substantially  in  the  same  manner  as  the  matter 
of  a  complaint,  except  in  the  mere  formal  matter  of  the  com- 
mencement, as,  for  example :  "  And  for  a  further  answer  to  the 
plaintiff's  complaint  (or  to  the  first  cause  of  action  set  forth  in  the 
complaint),  the  defendant  says,"  etc.  A  cross-bill  filed 
[*580]  for  collateral  relief  diflered  in  no  *  respect  from  the  com- 
mon form  of  an  original  bill,  but  stated  the  injury  sought 
to  be  redressed.  The  rules,  therefore,  heretofore  given,  are,  in 
most  respects,  applicable  to  the  mode  and  manner  of  stating  the 
defendant's  counter-claim. 

The  counter-claim  is  substantially  in  the  nature  of  a  new  action. 

'  8  How.  Pr.  335  ;  but  see  contra,  note,  ■*  Sutherland  v.  Rose,  47  Barb.  144; 

ante,  p.  555.  Miller  v.  Freeborn,  4  Rob.  608.     See 

*  Farmers'  Loan  and  Trust  Co.  v.  Miller  v.  Beekman,  43  How.  33 ;  SUster 

EvM,  1  Code  R.  N.  S.  1.  v.  Smith,  41  id.  418. 

3  Foster  v.  Milliner,  50  Barb.  385 ;  but 
■ee  Miller  v.  Freeborn,  4  Rob.  608. 


638  THE  ANSWER.  [CH.  V 

It  is  an  independent  cause  of  action  in  itself,  and  should  be 
required  to  be  stated  with  the  same  distinctness,  precision  and 
certainty  as  the  matter  in  the  complaint.  If  controverted  by  the 
plaintiff  it  is  required  to  be  denied  by  a  reply.  The  same  rules, 
tlierefore,  as  to  duphcity,  hypothetical  pleading,  striking  out 
redundant  and  irrelevant  matter,  etc.,  etc.,  will  apply.  Thus,  in 
Dewey  v.  Iloag^  in  an  action  to  recover  possession  of  land,  in 
which  an  equitable  title  and  claim  for  reconveyance  on  the  part 
of  defendant  was  set  up  in  the  answer,  without,  however,  any 
prayer  for  such  relief.  Justice  Hand  says :  "  The  defendant  must 
become  an  actor  in  respect  to  his  claim,  and  his  answer  must  con- 
tain all  the  elements  of  a  bill  for  a  specific  performance,  and  he 
must  ask  and  obtain  affirmative  relief;"  and  the  defense  was  held 
to  have  been  defectively  stated,  for  the  reason,  among  others,  that 
it  did  not  offer  to  perform,  nor  ask  that  the  plaintiff  be  required 
to  perform,  and  claimed  no  judgment  except  for  costs.  A  prayer 
for  such  affirmative  relief  as  the  plaintiff  demands  should 
[*5S1]  regularly  *  be  inserted,"  but  if  the  answer  consist  simply 
of  defensive  matter  a  prayer  for  relief  is  unnecessary  and 
irrelevant. 

Recoupment  of  damages,  as  we  have  seen,  could  not,  in  an 
action  at  law,  be  pleaded,'  but  might  be  given  in  evidence  under 
the  general  issue  with  a  notice  of  such  evidence  ;  but  such  a  de- 
fense should  now  be  set  up  or  pleaded  as  a  counter-claim,  substan- 
tially in  the  manner  that  the  party  intending  to  avail  himself  of 
it  would  state  it  in  his  complaint  in  an  independent  action.*  Or, 
perhaps,  which  is  much  the  same  thing,  it  should  be  set  up  sub- 
stantially the  same  as  it  was  required  to  be  in  the  former  notice 
under  the  general  issue,  which,  as  we  have  already  remarked, 
though  not  required  to  be  in  the  strict  technical  form  of  a  plea, 
must  contain  all  the  facts  necessary  to  be  stated  in  a  special  plea.' 
The  foregoing  rules,  therefore,  which  have  been  given  relative  to 
the  general  mode  of  stating  new  matter  in  the  answer,  may  be 
considered  applicable  in  regard  to  these  matters  of  counter-claim. 
The  mere  fact  that  a  defendant  has  commenced  an  action  for 
damages  on  the  same  claim  which  has  not  proceeded  to  trial  or 

1  15  Barb.  S.  C.  365.  *  Nir.hols\.  Dusenhiiry,  2  Comst.  283. 

5  See  Anonymous,  11  Leg.  Obs.  350 ;        ■•  Willis  v.  Taggard,  «  Hew.  Pr.  433. 

Gage  v.  Angeli,  8  How.  335.  ^  13  Johns.  475, 10  id.  140,  8  id.  455. 


SEC.  IV.]  COUNTEE-CLAIM.  639 

judgment,  is  not  necessarily  a  bar  to  his  setting  up  the 
[*582]  same  matter  in  the  answer  by  way  of  recoupment,'  *  still, 
a  defendant  will  not  be  allowed  to  have  at  the  same  time 
his  separate  action  and  his  defense  on  the  same  matter,  but  will 
be  put  to  his  election,  either  to  proceed  in  the  suit  he  has  insti- 
tuted, or  confine  himself  to  his  recoupment  in  his  answer.' 

If  a  defense  be  founded  on  a  written  instrument,  for  the  pay- 
ment of  money  only,  it  will  be  sufficient  to  set  out  a  copy  of  the 
instrument  and  to  state  the  sum  due  and  claimed  thereon.^  But 
this  also  must  be  understood  with  the  limitation  recognized  in 
Lord  V.  Cheesho7'ough,  suiyra^  that  the  present  defendant  must, 
by  some  proper  averment  in  the  answer,  show  himself  entitled  to 
recover  on  such  instrument  against  the  present  plaintiff. 

In  Ranney  v.  Smithy  a  set- off  was  held  to  be  a  defense  within 
the  meaning  of  section  150,  requiring  defenses  to  be  separately 
stated  and  to  refer  to  the  causes  of  action  which  they  were  in- 
tended to  answer.  In  that  case,  a  set-otf  was  alleged,  consisting 
of  sundry  items,  among  which  were  four  notes,  on  which  the 
defendant  claimed  that  the  plaintiff  was  indebted  to  him  in  the 
sum  of  five  hundred  dollars,  setting  forth  copies  of  the  notes. 
The  answer  then  alleged  a  judgment  against  the  plaintiff 
[*583]  ^  as  a  set-off  and  a  chattel  mortgage.  The  court  denied 
a  motion  to  strike  out  or  set  aside  that  part  of  the  answer 
relative  to  the  notes,  mainly  on  the  ground  that,  by  the  amend- 
ment to  section  162,  the  defendant  was  at  liberty  to  set  out  a 
copy  of  the  note  as  his  statement  of  demand,  and  that  the  copies 
of  these  notes  were  "  separate  "  statements  within  the  meaning  of 
section  150.  In  relation  to  the  manner  of  stating  a  defense  by 
way  of  set-off  generally,  the  rule  was  very  clearly  laid  down  by 
the  court  in  that  case,  as  follows :  "  That  the  answer  stating  the 
defense  of  set-off  should  state,  as  new  matter,  the  facts  constitut- 
ing the  cause  of  action  or  demand  against  the  plaintiff"  as  a  set- 
off, in  the  same  manner  and  with  the  same  particularity  as  those 

>  Fabricotti  v.  Launitz,  3  Sand.  744 ;  under  tlie  Code  [Harris  v.  Hammond, 

Campton  v.  Greene  and  Me,  9  How.  Pr.  18  How.  1231. 

228 ;  Harris  v.  Hammond.  18  How.  123.  ^  Code,  J5  163. 

2  Fabricotti  v.  Launitz,  3  Sandf.  744,  *  1  C.  K.,  N.  S.  252,4  Sandf.  696,  and 

1  C.  R.,  N.  S.  191 ;  Farmrrs'  Loan  and  see  ante,  pp.  220-233. 

Trust  Co.  V  Hunt,  id.  1  :  and  see  latter  °  6  How.  Pr.  421,  special  term,  per 

case,  as  to  the  practice  in  such  cases  M.vuvix,  J. 


640  THE  ATTSWEE.  [CH.  V. 

facts  would  be  stated  in  a  complaint.  And  when  two  or  more 
notes,  judgments  or  bonds,  or  other  distinct  demands,  are  in- 
tended to  be  set-off,  each  of  them  should  be  separately  and  par- 
ticularly described,  with  all  the  allegations  or  averments  neces- 
sary to  show  the  liability  of  the  plaintiff,  and  so  as  to  enable  him 
in  his  reply  to  take  issue  by  denying  any  of  the  material  allega- 
tions pertaining  to  each  note,  judgment  or  bond,  or  other  par- 
ticular demand ;  or  to  avoid  the  same  by  alleging  new  matter. 
But  all  demands  constituting  the  set-off"  may  be  contained  in  tho 
same  staUment  of  new  matter  in  the  answer ;  each  demand  which, 
in  a  complaint,  should  be  separately  stated,  as  constituting  by 
itself  a  cause  of  action,  being  separately  described  or  stated  with 
the  necessary  averments,  and  all  constituting  the  defense  of  set- 
off'." [One  who  advances  money  to  an  officer  of  the  State,  not 
authorized  to  borrow  money  on  its  credit,  acquires  no  right  of 
action  against  the  State,  even  though  the  money  was  required 
and  used  by  the  officer  in  the  discharge  of  his  duty  as  such  ; '  nor 
can  a  citizen,  when  sued  by  his  State,  interpose  a  counter-claim 

as  a  defense." 
[*584:]       ^In  case  a  set-off  is  relied  on  as  a  counter-claim,  the 

nature  and  extent  of  it  should  be  clearly  and  distinctly 
stated.'  It  is  not  sufticient  to  allege  that  the  plaintiff,  previous 
to  the  accruing  of  the  demand  set  forth  in  the  complaint,  was 
indebted  to  the  defendant  on  account  of  previous  transactions  in 
a  sum  of  money  equal  to  the  sum  claimed  by  the  plaintiff',  as  will 
appear  by  the  account  current  rendered  by  the  plaintiff".  Under 
an  order  to  make  such  an  answer  more  definite  and  certain  by 
amendment,  the  defendant  alleged  the  set-off"  to  be  for  work  and 
labor,  and  for  goods,  wares  and  merchandise,  and  for  money  lent, 
paid  and  expended,  in  the  language  of  the  common  counts  under 
the  old  practice.  The  answer  was  held  bad,  and  a  motion  to 
strike  out  granted,  with  costs.* 

'  People  V.  Brandreth,  3  Abb.  N.  S.  *  Wiggins  v.  Oans,  New  York  supe- 

224,  'i>i)  N.  Y.  191.  rior   court,   per   Mason,  J.,  with  the 

^  Battle  y.  Thompson,  QSl^.CAOQ.  concurrence  of  the   other  justices,  3 

*  Ante,  551,  marg.  p.  Sand.  738. 


SEC.  V.l  VERIFICATIOlSr   OF.      .  641 


SECTION  V. 

VERIFICATION  OP  THE  ANSWER 

In  treating  the  subject  of  the  verification  to  the  plaintiff's  com- 
plaint, ante^  chapter  four,  section  four,  the  form  and  manner  of 

verification  in  general  were  considered,  and  the  conse- 
[*585]  quences  of  a  defective  verification.'     *  These  remarks  are, 

in  the  main,  applicable  to  the  verification  on  the  part  of 
the  defendant.  It  will  be  proper  in  this  section  to  notice,  briefly, 
one  or  two  matters  in  addition,  relating  particularly  to  the  answer, 
and  first : 

'When  defendant  is  privileged  from  verifying  his  answer. — 
Under  the  original  Code  of  1848,  which  required  all  pleadings  to 
be  verified,  the  party  might  omit  a  verification  whenever  lie  would 
be  privileged  from  testifying  as  a  witness  to  the  same  matter.* 
It  was  aecordino'lv  held  that  the  verification  miffht  be  omitted 

Of  o 

when  the  court  could  see  that  the  matter  contained  in  the  pleading 
was  such  as  might  aid  in  forming  a  chain  of  testimony  to  convict 
him  of  a  criminal  offense ;  the  criterion  being,  not  whether  the 
pleading  might  be  used  against  him  in  a  criminal  prosecution,  but 
whether,  if  called  as  a  witness,  he  would  be  excused  from  answer- 
ing the  same  matter.'  And  it  was  enough  to  excuse  the  verifica- 
tion, if  a7iy  of  the  parties  would  be  privileged  from  ansM^ering, 
though  other  parties  might  not  be  so  privileged ;  nor  need  all 
the  statements  in  the  pleading  be  such  as  would  excuse  the  party 
from  testifying  as  a  witness ;  if  any  part  of  the  pleading  was  of 
such  a  character  it  need  not  be  verified.' 

The  Code,  as  amended  in  1849,*  left  it  optional  with  a 
[*586]  plaintiff'  to  verify  his  complaint ;  but  if  he  *  did  so,  the 
defendant  was  required  to  verify  his  answer  also.  The 
section,  as  thus  amended,  contained  no  clause  excusing  the  party 
from  verifying  his  answer  in  certain  cases,  or  provided  that  the 
pleading  thus  verified  should  not  be  used  against  the  part}'  on  a 
criminal  prosecution,  etc.     Under  the  Code,  as  it  thus  stood,  the 

*  See  ante,  370-525,  marg.  pp.  ^  Clapper  v.  Fitzgerald,  3  How.  Pr 

*  See  original  Code,  §  133.  314,  per  Harris,  J. 

*  Code  of  1849,  §  157. 

81 


642  .  THE   AI^SWER.  [CH.  V. 

New  York  superior  court  very  properly  held  that  a  party  was 
privileged  under  the  constitution  from  being  a  witness  against 
himself  in  a  criminal  prosecution,  and  he,  therefore,  need  not 
admit  or  deny  allegations  in  the  complaint,  which  he  will  state 
in  his  answer  under  oath  might  subject  him  to  criminal  prosecu- 
tion. Such  statement  in  the  answer,  duly  verified  according 
to  the  Code,  would  put  the  allegations  in  issue,  and  throw 
the  plaintiff"  on  his  proof,  precisely  the  same  as  though  an 
answer  had  been  interposed  denying  the  allegation/  The  same 
doctrine  was  afterward  held  in  another  case,"  with  the  con- 
currence of  three  judges  of  the  same  court;  and  it  was  also  said 
that  the  defendant  might  decline  in  this  manner  to  reply  to  such 
alleffations  and  answer  the  residue.  In  the  former  case  the  rule 
was  applied  in  an  action  of  assault  and  battery ;  in  the  latter  of 
libel. 

The  Code  of  1851  (and  this  was  left  untouched  by  the  amend- 
ments of  1852)  remedied  the  defect,  and  supplied  the  omission  in 
the  Code  of  1849.  It  provided  that  the  verification  might 
[*587]  be  omitted  *  when  an  admission  of  the  truth  of  the  alle- 
gation might  subject  the  party  to  a  prosecution  for 
felony  ;  and  that  no  pleading  could  be  used  in  a  criminal  prose- 
cution against  the  party,  as  proof  of  a  fact  admitted  or  alleged  in 
such  pleading.' 

But,  by  a  recent  statute,  the  law  is  brought  back  again  sub- 
stantially to  where  it  was  under  the  original  Code ;  and  "  the 
verification  of  any  pleading,  in  any  court  of  record  of  this  State, 
may  be  omitted  in  all  cases  where  the  party  called  upon  to  verify 
would  be  privileged  from  testifying  as  a  witness  to  the  truth  of 
the  matter  denied  by  such  pleading ; "  *  that  is  to  say,  where  the 
court  can  see,  or  where  the  defendant  is  willing  to  swear,  that  the 
matter  contained  in  the  pleading  may  aid  in  forming  a  chain  of 
testimony  to  convict  him  of  any  crime  or  onisdemeanor,  or  to 
expose  him  to  any  penalty  or  forfeitures^  or,  in  certain  cases,  to 
degrade  his  character^  etc' 

In  another  part  of  this  chapter,'  the  question  was  considered  as 

>  Hill  V.  Midler,  2  Sandf.  684.  *  2  R.  S.  405,  ^  71. 2  Edm.  Stat.  422. 

'  White  V.  Oumminr/s,  3  Sandf.  716.  '  See  Cow.  and  Hill's  notes  to  I'hil. 

'  §  157,  see  whole  section  as  quoted,  Ev.  738  to  749. 

ante,  p.  371.  '  Ante,  pp.  525-527,  marg  p. 
*  Laws  of  1854,  p.  153. 


SEC.  v.]  VEEIFICATION   OF.  643 

to  the  proper  mode  of  putting  the  allegations  of  the  complaint  in 
issue,  where  the  defendant  is  privileged  from  verifying  his  answer, 
and  the  conclusion  was  arrived  at,  that,  as  the  law  now  stands, 
the  defendant  cannot,  as  he  was  permitted  to  do  in  Hill  v. 
Muller,  and  White  v.  Cummings^  supra^  put  in  issue  the 
P588]  allegations  by  *  declining  either  to  admit  or  deny  them, 
and  then  set  forth  the  reason  thereof  in  his  affidavit  of 
verification ;  but  that  he  must  put  such  allegations  in  issue  by  a 
denial  in  form,  which  he  need  not  verify,  accompanying  such 
denial  when  necessary  with  an  affidavit,  setting  forth  his  privi- 
lege, namely,  that  an  affirmative  answer  to  such  allegations  would 
tend  to  render  him  liable  to  a  criminal  conviction,  or  to  a  for- 
feiture, or  penalty,  etc' 

Where  a  party  is  privileged  from  verifying  his  answer  to  certain 
allegations  in  the  complaint,  which  might  subject  him  to.  prosecu- 
tion for  felony,  and  there  are  other  material  allegations  which 
he  would  otherwise  be  bound  to  answer,  the  proper  course,  if  the 
complaint  is  sworn  to,  is  to  put  in  an  answer  without  verification, 
with  an  affidavit  of  the  reason  why  he  does  not  verify  the  answer. 
Or,  if  it  appear  on  the  face  of  the  complaint  that 
[*589]  *  the  allegation  itself  is  of  such  a  nature  as  must  tend, 
if  true,  to  render  the  defendant  liable  to  prosecution,  etc., 
he  may  answer  without  the  affidavit. 

An  answer  not  verified  by  oath,  when  an  oath  is  required,  may 
be  treated  as  a  nullity.  But  a  pleading  which  may  be  treated  as 
a  nullity  should  be  immediately  returned,  or  notice  given  that  it 
will  be  disregarded,  in  order  to  allow  the  opposite  party  to  supply 
the  omission  or  remedy  the  defect.'  [Or,  if  it  cannot  be  returned, 
notice  of  the  defect  should  be  promptly  given.*] 

The  defendant  may  verify  his  answer  even  though  the  complaint 
is  not  verified,  and  this,  when  a  counter-claim  is  set  up,  will 
require  the  plaintiff  to  verify  his  reply  to  such  counter-claim.* 

It  is  a  sufficient  and  proper  verification  if  the  defendant,  in  his 

'  See  ante,  p.  536,  and  cases  there  WMte  v.  Cummings,  3  id.  716  ;  also,  7 

cited.     If  it  appear  from  the  allegation  How.  Pr.  36,  1  Code  R.  26,  3  How.  Pr. 

itself,  which  is  denied,  that  the  party  280,  6  Leg.  Obs.  317,  4  How.  Pr.  156, 

would  be  privileged  from  testifying  to  and  see  ante,  p.  376,  marg.  p. 

its  truth,  the  affidavit  setting  forth  the  »  ^f,,;;  y  j^ail,  14  How.  305. 

privilege  is  superfluous.  ■•  Code,  §  150. 

'  Liambecr  v.  Allen,  2  Sandf.  648  ; 


644  THE   AlS'SWER.  [CH.  V. 

answer,  had  stated  nothing  on  information  and  belief,  for  the  affi- 
davit of  verification  to  state  that  the  answer  is  true  to  his  Tcnowlr 
edge,  without  adding  the  words,  "  except  as  to  the  matters  therein 
stated  on  information  and  belief,  and,  as  to  those  matters,  he  believes 
it  to  be  true."  '  As  to  defective  forms  of  verification,  see  verifi- 
cation of  complaint." 
[*590]  *  Separate  answers  on  the  part  of  separate  defendants, 
not  united  in  interest,  must  be  separately  verified  by  each 
defendant."  One  defendant  cannot  swear  to  the  want  of  sufiicient 
knowledge  or  information  to  form  a  belief  on  the  part  of  a  co- 
defendant.  In  such  cases  a  proper  form  of  verification  is  intimated 
in  the  opinion  of  the  court,  in  Kinhaid  v.  Kijpjp  and  Brown*  to 
be  as  follows:  "These  defendants  severally  say,  each  for  himself, 
that  he  has  no  knowledge  or  information  thereof  sufiicient  to  form 
a  belief." 

The  makers  and  indorsers  of  a  note  or  bill  are  not  parties  united 
in  interest,  so  that  a  verification  by  one  will  be  a  verification  for 
all.''  And  if  such  an  answer  be  put  to  a  verified  complaint,  the 
answer  of  the  defendant  who  has  not  separately  verified  his 
defense  will  be  struck  out.  The  meaning  of  the  words,  "  united 
in  interest,"  in  section  157,  is  said  to  be  the  same  as  that  of  the 
same  words  in  section  119.  It  means  joint  promisors,  obligors, 
and  the  converse,  or  at  least  parties  occupying  the  same  position 
in  respect  to  the  same  cause  of  action ;  and  it  is  such  parties 
only  who  have  the  liberty  of  verifying  a  complaint,  one  for  the 

other.* 

Where  there  are  several  defendants,  united  in  interest, 

[*591]  who  answer  together,  the  verification  may  be  *by  one 

alone,  if  such  party  is  within  the  county  where  the  attorney 

resides,  and  capable  of  making  an  afiidavit,  and  is  acquainted  with 

the  facts.''    It  is  not  very  clear  what  this  acquaintoAice  with  the 

facts  means,  or  whether  a  personal  hnoioledge  or  mere  helief 

founded  on  information  is  sufiicient.     The  latter  is  probably  in- 

'  Kirikaid  v.   Eipp  and   Brown,   1  tion  of  the  Judges  of  tlie  New  York 

Duer,  692.  superior  court. 

-  Ante,  pp.  371-376,  marg.  pp.  '  Alfred  v.  WntkinH,  1  Code  R.  N.  S. 

"  Alfred  v.  Watkins,  1  Code  R.  N.  S.  343  [Hull  v.  Ball,  14  How.  305]. 

34.3 ;  Andreses  v.  Storms,  5  Sandf.  609  ;  *  Andrews  v.  Storms,  5  Sandf    609 

[Gray  v.  Kendall,  5  Bosw.  666, 10  Abb.  [Evil  v.  Ball,  14  How.  3051. 

101  '  Code,  §  157. 

*  1  Duer,  692,  approved  on  consulta- 


SEC.  VI.]       SHAM,    IRRELEVANT  AND   FRIVOLOUS.  645 

tended,  and  if  one  of  sucli  joint  defendants  is  generally  acquainted 
with  the  facts  set  up  in  the  complaint,  doubtless  he  may,  on 
behalf  of  all,  properly  verify  an  answer,  denying  all  knowledge  or 
information  sufhcient  to  form  a  belief  thereof.  The  affidavit  of 
verification,  when  made  by  one  defendant,  should  show  affirma- 
tively that  he  is  acquainted  with  the  facts,  and  how  his  knowledge 
thereof  is  derived.  So,  also,  when  made  by  an  agent  or  attorney/ 
But  it  seems,  in  both  cases,  to  be  sufficient,  when  nothing  is 
alleged  on  information  and  belief,  for  the  verification  to  be  gener- 
ally that  the  answer  is  true,  without  swearing  that  the  party  is 
acquainted  with  the  facts. 


[*593]  *  SECTION  VI. 

SHAM,  IREELEYANT  AND  FRIVOLOUS  ANSWERS  AND  DEFENSES. 

The  original  Code  provided  no  M^ay  of  getting  rid  of  a  frivolous 
answer  in  a  summary  way,  or  of  a  sham  and  irrelevant  defense. 
The  court,  however,  for  some  time  before  the  adoption  of  the 
Code,  had  exercised  the  power  of  striking  out  the  plea  as  false,  a 
practice  which,  it  is  said,  was  founded  on  the  same  considerations 
which  lay  at  the  foundation  of  the  practice  of  striking  out  frivol- 
ous pleas,  namely,  to  guard  against  the  delay.  But  this  was  con- 
fined to  special  pleas  of  new  matter,  and  the  general  issue  was 
never  treated  as  a  sham  plea."  So,  also,  a  plea  verified  under  the 
rules  of  the  court  could  not  be  struck  out  as  false,  because  the 
court  would  not  try  the  matter  on  affidavits,^  and  the  affidavit  for 
the  motion  was  required  not  only  to  allege  that  the  plea  was  false 
or  frivolous,  but  to  specify  wherein  the  falseness,  etc.,  consisted. 
If  the  court  were  satisfied  that  such  pleas  were  interposed  merely 
for  delay  or  some  other  improper  motive,  and  they  appeared  pal- 
paljly  frivolous,  or  were  shown  to  be  palpably  false,  they  were 

'  Fitcli  V.  BigdoiD,  5  How.  Pr.  2o7  ;  safercourse,  however,  in  all  such  cases, 

Vnu  Home  V.  Montrjomm/,  Ty  id.  2S8;  is   to   bring   the    verification    strictly 

Hunt   V.  Mencluim,  G  id.  400.     But  in  within  the  statute,  aud  show  that  the 

S'luilbworth  V.  Curti.9  and  others,  G  id.  party  making  it  alo7ie  has  the  right  to 

2'i"i,  Jur-tice  Hubbard  thinks  it   un  do  so. 

necessary    that    the   affidavit    should  -  8  Wend.  586,  2  Cow.  G35,  6  id.  34 

Bpecilically  state  that  the ;ji'«'?//nuiking  [40  N.  Y.  472]. 

it  is  acquainted  with  the  facts.    The  ^1  Hill.  370 


646  THE  ANSWER.  [CH.  V. 

stricken  out,'  and  such  also  was  the  practice  under  the  original 

Code." 
[*593]       *  The  amendments  of  1849  applied  in  terms  these  prin- 
ciples directly  to  the  practice  under  the  Code. 
Section  152  provided  that : 

"  Sham  answers  and  defenses  may  be  stricken  out  on  motion." 
Section  247 : 

''  If  a  demurrer,  answer  or  reply  be  frivolous,  the  party  prejudiced 
thereby,  upon  a  previous  notice  of  five  days,  may  apply  to  a  judge 
of  the  court,  either  in  or  out  of  the  court,  for  judgment  thereon, 
and  judgment  shall  be  given  accordingly." 

The  former  of  these  sections  was  amended  in  1851,  by  the 
insertion  of  the  following  words  in  italics,  so  as  to  read  thus : 

"  Sham  and  irrelevant  answers  and  defenses  may  be  stricken  out 
on  motion,  a7icl  upo)i  such  terms  as  the  court  may,  in  their  discre- 
tion, impose." 

In  Davis  v.  Potter,*  it  was  said,  that  "  -^ham  "  was  not  used  in 
this  section  as  synonymous  with  ^^ false  ^  "  if  it  were  so,  the  truth 
of  every  answer  might  be  tested  on  special  motion.  It  was  said 
in  that  case,  that  "  it  is  only  where  the  answer  takes  issue  upon 
some  immaterial  averment  of  the  complaint,  or  sets  up  new  and 
irrelevant  matter,  that  it  can  properly  be  called  a  sham  defense ;  " 
and  also,  that  a  sham  pleading  meant  nothing  dilFerent  from 
a  frivolous  pleading,  except  that  the  latter  did  not 
[*594]  *  necessarily  imply  that  its  object  was  evasion  or  delay. 

On  the  other  hand,  it  is  said  in  the  later  case  of  Nichols  v. 
Jones*  that  the  essential  element  of  a  sham  plea  is  falsity  ^  and 
that  the  true  rule  to  be  adopted,  under  the  Code,  is  to  strike  out 
all  answers  or  defenses  as  sham  under  section  152,  when  they 
appear  clearly  to  be  false,  whether  they  are  good  in  point  of  law  on 
their  face  or  not.  In  the  same  case,  it  was  said  that  a  frivolous 
answer  was  quite  a  different  thing :  "  It  is  an  answer  which,  if 
true,  does  not  contain  any  defense  to  any  part  of  the  plaintifi''a 
cause  of  action  ;  and  its  insufficiency  as  a  defense  must  be  so  glar- 
ing that  the  court  can  determine  it,  upon  bare  inspection,  with- 

'  1  Hill,  370,  18  Wend.  680.  ferta  v.   Snediker,  1   Abb.    Pr.    116; 

2  1  Code  R.  38,  id.  72,  3  How.  Pr.  289.  [ritompson  v.  Erie  Railway,  40  N.  Y. 

3  4  How.  Pr.  loo.  271]. 
*  6  How.  Pr.  355 ;  and  see  also  Lef- 


SEC.  VI.]       SHAM,    IRRELEVANT  AND   FRIVOLOUS.  647 

out  argument.  It  differs  totally  from  a  sliam  answer  in  tins,  that 
the  one  is  always  assumed  to  be  true,  and  the  other  must  always 
be  proved  to  be  false.  One  is  always  bad  on  its  face  ;  the  other 
generally  good.  One  is  decided  by  inspection ;  the  other  by 
proof  aliunde^  *  The  distinction,  if  any,  between  a  frivolous 
and  an  irrelet^nt  answer  was  not  noticed  in  this  case.  But  in 
the  subsequent  case  of  Harlow  v.  Hamilton,^  Justice  Willakd 
deiines  an  irrelevant  answer  to  be  one  which  is  good  in  form  and 

true  in  fact,  but  which  has  no  relation  to  the  cause ;  as, 
[*595]  for  example,   *  a  l)ankrupt's  discharge  to  an  action   of 

slander.  It,  therefore,  differs  from  a  sham  answer  mainly 
in  this,  that  the  one  is  true  in  fact,  and  the  other  untrue.  Like  a 
frivolous  answer,  it  is  to  be  decided  by  inspection,  and  not  by 
proof  aliunde,  while  a  sham  answer  must  be  proved  to  be  false. 

The  general  definitions  in  the  case  of  Nichols  v.  Jones,  sujpra, 
have  been  approved  and  followed  by  subsequent  decisions,'  with 
some  slight  modification  of  the  rules  therein  laid  down.  In 
regard  to  a  sham  answer,  the  practice  seems  to  have  been  settled 
in  Mier  v.  Cartledge,*  at  the  New  York  general  term,  that  if  the 
answer  is  verified,  as  required  by  the  Code,  a  motion  to  strike  it 
out,  as  false,  could  not  be  entertained,  for  the  court  would  not 
try  the  question  on  affidavits.  "  I  fully  concur  with  the  court," 
says  Justice  Edmonds  in  that  case,  "  when  in  2  Cowen,  637,  they 
said  they  would  suffer  the  pleading  ^!  stand  upon  a  very  slight 
suggestion  of  its  truth.  We  will  not  try  the  question  on  afiidavits, 
and  it  has  never  been  the  practice  to  require,  in  answer  to  such  a 
motion  as  this,  satisfactory  evidence  of  the  truth  of  the  plea  or 
answer.  A  slight  suggestion  thereof  will  be  enough  ;  a  mere 
probability  of  its  truth,  some  reason  for  believing  it  to  be  inter- 
posed in  good  faith,  may  answer.     But,  when  it  is  manifestly  false, 

where  its  falsehood  is  conceded,  as  in  2  Cowen,  637,  or 
[*596]  its  falsehood  is  sworn  to  on  the  *one  side,  and  on  the 

other  no  general  or  special  affidavit  of  merits  is  produced, 

and  no  pretense  is  made  that  the  plea  is  true,  as  in  18  "VYend. 

567,  and  in  1    Barn.  &  Cress.  286,  then  it  is  the  well-settled 

'  This  agrees  with  Barroic  v.  Miller,  "  6  How.  Pr.  475. 

5  How.  Pr.  247 ;  Seward  v.  Miller,  6  ^  See  Winne  v.  Sickles,  9   How.  Pr. 

id.    312  :    and    Brown   v.    Jennison,   3  217,  and  cases  infra. 

Sandf.  372  [Kreitz  v.  Frost,  5  Abb.  N.  *  See  note  to  Nichols  v.  Jones,  6  How 

S.  277].  Pr.  360. 


048  THE  ANSWER,  [CH.  V. 

practice  to  strike  it  out  for,  in  such  cases,  it  is  clear  no  injustice 
can  be  done."  * 

[Where  the  answer  read  in  connection  with  the  complaint 
shows  on  its  face  that  it  is  sham  or  frivolous  it  may  be  stricken 
out.^  But  an  answer  consisting  of  a  general  denial  of  the  mate- 
rial allegations  of  the  complaint  cannot  be  stricken  out  as  sham,' 
and  so  of  a  denial  of  any  material  allegation,  although  affidavits 
be  read  to  show  its  falsity/  When  the  complaint  does  not  state 
a  cause  of  action  an  answer  thereto  will  not  be  stricken  out  as 
sham,^  nor  as  frivolous.'] 

In  this  opinion,  as  to  striking  out  a  verified  answer  as  sham, 
Justice  Baeculo,  though  intimating  at  first  a  different  opinion, 
concurred,'  and  it  may  be  regarded  as  a  settled  practice.* 

The  case  of  Mier  v.  Cartledge  was  for  some  time  thought  to  be 
authority  for  the  practice  of  striking  out,  as  false  or  sham,  an 
answer  consisting  of  mere  denials  of  some  one  or  more  of  the 
plaintiff''8  allegations,  when  such  denials  are  not  verified;  and 
this  practice  has  been  followed  in  several  cases,  mostly  in  the 
New  York  superior  court.*  But  the  rule  of  the  supreme  court, 
at  least,  seems,  upon  good  authority,  to  be  settled  to  the  contrary. 
Thus,  in  Sherman  v.  Bushnell,  and  Caswell  v.  Bushnell^'^ 
[*697]  at  the  New  York  general  term,  the  court,  on  full  consid- 
eration, held  that  mere  denials  or  negations  are  never  to 
be  treated  as  sham  answers.  That  an  answer  is  false,  says  the 
court,  "  is  a  part,  and  only  a  part,  of  the  definition  of  a  sham 

'  Keefer  v.  Thomas,  6  Abb.  N.  S.  43.  himself  as  not  entirely  satisfied  with 

^  Peoples.  Mc  Cumber,  \%  'i^.Y.Zlo;  the   doctrine,   and    thinks    it    should 

McCarty  v.  O'Donnell,  7  Rob.  4ol.  receive    some    further     consideration 

*  Wayland  v.  Tysen,  45  N.  Y.  281,  before  being  adopted  as  the    settled 
283,  qualifying  ;  People  v.  MeOamher,  practice. 

18  id.  3Io;  Allis   v.  Leonard,  46    id.  'See    Fleury   v.  Boget,   Fleury  v. 

688  ;     Fasnacht    v.    Htehn,    53    Barb.  Brown,  Flammer  v.  Kline,  9  How.  Pr. 

651;   Ward  v.  Waterhou!<e,2  Rob.  653.  215,  216;   and,  also,  Conklin  et  al.  v. 

^  Thompson  v.  Erie  Railway  Co.,  45  Vandervoort,  at  special  term    of   the 

N.  Y.  468  ;  DeForeM  v.  Baker,  1  Abb.  supreme  court,  7  How.  Pr.  483.     In  the 

N.  S.  34 ;  McOregor  v.  McGregor,  35  first  two  cases  the  answers  were  also 

How.  385 ;  Winslowv.Ferguson,\hdiiia.  verified.    They  were  all  upon  promis- 

436.  sory  notes,  and  were  denials  of  the  alle- 

^  Newman  v.  Board  of  Supervisors,  gations  that   the  plaintiff  was    "  the 

1  Lans.  476.  lawful  holder  and  owner,"  etc.     They 

*  Van  Alstynev.  Friday,  il  N.  Y.  174.  may,  therefore,  have  been  struck  out, 
''  See  note  to  Nichols  v.  Jones,  6  How.  not  merely  as  technically  shaiu  answers, 

Pr.  360.  but  as  evasive  or  irrelevant,  and    as 

•■  See  Miln  v.  Vose,  4  Sandf.  600,  and  raising  an  immaterial  issue. 

subsequent  cases.  In  Ostrom  v.  Bixhy,  '"  14  Barb.  S.  C.  395,  7  How.  Pr.  171. 
9  How.  57,  Justice  Bacon  expresses 


BEC.  VI.]       SHAM,    IRRELEVANT  AND   FRIVOLOUS.  649 

answer,  it  omits  tlie  essential  part  of  the  definition,  namely,  that 
the  answer  sets  up  new  matter."  That  case  has  been  followed  by 
others  holding  a  similar  doctrine,  and  the  result  of  all  of  them 
may  be  briefly  summed  up  in  the  language  of  Justice  Harris,  in 
his  recent  opinion  in  Winnie  y.  Sickles :^  "The  power  of  the 
court  to  strike  out  a  sham  or  false  answer  or  defense  is  retained 
by  the  152d  section  of  the  Code.  The  principles  by  which  the 
court  is  to  be  governed  in  the  exercise  of  this  power  have  not 
been  changed.  Under  the  former  practice,  the  plea  of  the  gen- 
eral issue  was  never  stricken  out  as  false.  The  obvious  reason 
for  making  this  exception  is  found  in  the  nature  of  the  plea  itself. 
It  merely  refers  the  plaintiff  to  the  proof  of  his  cause  of  action, 
as  he  has  alleged  it  to  exist.  It  affirms  nothing  to  be  true,  and, 
therefore,  can  scarcely  be  said  to  be  a  sham  or  false  plea.  So, 
under  the  Code,  the  defendant  may  deny,  generally,  the  allega- 
tions of  the  complaint;  when  he  does  this  his  answer  amounts  to 
the  general  issue ;  or,  admitting  some  of  the  allegations,  he  may 
put  others  in  issue  by  denying  them.     In  neither  case  can  the 

answer  be  said  to  be  a  sham  answer.     In  either  case  the 
[*598]  defendant  *  has  a  right  to  have  the  issue   he  has  made 

tried  in  the  usual  manner."  " 
This  suggests  two  considerations  which  are  worthy  of  note,  and 
should  not  be  lost  sight  of :  First,  that  though  an  answer,  verified^ 
can  in  no  case  be  struck  out  as  sham  or  false,  yet  the  verification 
will  not  prevent  it  from  being  treated  as  frivolous  or  irrelevant, 
for  it  is  well  said,  in  Reed  v.  Latson^  that  the  affidavit  of  verity 
has  no  tendency  to  make  that  material  which  is  palpably  frivo- 
loics  I  and  second,  that  though  a  mere  denial  without  verification, 
if  good  in  substance  or  form,  and  taken  upon  a  material  allega- 
tion of*  fact  in  the  complaint,  will  not  be  struck  out  as  false  or 
sham,  yet,  if  taken  upon  an  immaterial  allegation,  or  if  it  other- 
wise raise  an  immaterial  issue  in  the  case,  the  party  pleading  it 
cannot  save  himself  from  a  motion  to  strike  out  as  irreleva/nt,  or,» 
in  a  proper  case,  a  motion  for  judgment  as  frivolous*  merely 

'  9  How.  Pr.  217.  »  15  Barb.  S.  C.  17. 

"  See,  to  thft  same  eiFect,  Livingston  *  Thorn  &  Mnynard  v.  New  7:rk 

V.  Finkle,  8  How.  Pr.  485 ;    Wiite  v.  Central  Mills,  10  How.  Pr.  19.     In  this 

Bennett,  1  id.  59;  Dovis  v.  Potter,  4  id.  case  tlie  answer  was  evasive,  being-  a 

S30;  Goedel  v.   Bohinson,  1   Abb.  Pr.  denial,  on  information  and  belief,  of 

lltf.  a  fact  presumptively  within  the  knowl- 

82 


650  THE  ANSWER.  •  [CH.  V. 

because  his  answer  purports  to  be  notliing  more  than  a  denial. 
And  upon  this  principle,  I  think,  most  of  the  cases  can  be 
[*599]  reconciled.  A  party  who,  admitting  all  the  ^material 
allegations  in  the  complaint,  takes  issue  upon  a  merely 
immaterial  averment,  as,  for  example,  if  he  should  deny  that  a 
promissory  note  was  made  at  a  certain  place,  as  alleged  in  the 
complaint,  such  issue,  if  not  strictly  sham  or  false,  is  clearly  imma- 
terial ;  and,  if  immaterial,  irrelevant,  and  as  such  should  be  struck 
out  on  motion. 

The  subject  of  informal,  evasive  and  immaterial  issues  has 
already  been  noticed  in  a  previous  part  of  this  work,  and,  by 
reference  to  the  cases  there  cited,'  it  will  be  seen  that  most  of 
these  defective  denials  were  such  as  to  raise  immaterial,  that  is  to 
say,  irrelevant,  issues  in  the  case  —  issues  which  would  have  been 
laid  aside  entirely  on  the  trial,  and  which,  therefore,  should  prop- 
erly be  struck  out  on  motion,  and  not  suffered  to  incumber  the 
record  or  embarrass  the  opposite  party."  And  if  the  denial  be  so 
palpably  ineffectual  for  an}'  purpose  as  to  amount  to  nothing,  and 
really  to  raise  no  issue  at  all,  irrelevant  or  otherwise,  it  might  be 
regarded,  if  the  plaintiff  chooses,  as  frivolous  merely,  on 
[*600]  a  motion  for  judgment  *  under  section  247.^  Nor  would 
a  verification  of  such  denial  in  any  case  cure  the  defect.* 

It  will  be  seen,  from  the  foregoing,  that  there  is  a  difference  in 
the  mode  of  raising  the  objection,  not  only  between  a  sham  and 
an  irrelevant  answer,  but  also  between  an  irrelevant  and  a  frivo- 
lous answer  —  the  one  being  the  subject  of  a  motion  to  strike  out 
by  section  152,  and  the  other  of  a  motion  for  judgment  on  account 
of  the  frivolousness  of  the  defense  by  section  247.  The  adjudged 
cases  clearly  recognize  this  distinction.     In  Darroio  v.  Miller  ^  it 

edge  of  the  party  who  answered  ;  and  judgment,  and  not  by  motion  to  strike 

judgment  was  rendered  on  it  as  frino-  out,  as  in  Lcfferts  v.  Snediker,  1  Abb. 

loiis.     But  tli;  decision  was  reversed  Pr.   116.      But   I  do   not  see  why  au 

at  general   term,  on  the  ground  tliat  answer,   raising   sucli  an    immaterial 

the  answer  was  not  palpably  frivolous,  issue,  should  not,  within  the  principles 

h  Abb.  Pr.  187.  above  laid  down  and  cases  cited,  be 

'  Ante,  pj).  427-444.  regarded  also  as  irrelevant,  and  liable 

*  An  answer  merely  denying  a  ler/al  to  be  struck  out  on  motion,  especially 

eoncluidon,  as    where    the    defendant  where  it  is  joined  with  other  matter 

avers  that  the  plaintiff  is  not  "  the  law-  constituting  a  valid  defense, 

ful  holder  and  owner  of  a  promissory  '  Sherman  v.    New    York    Centra* 

note,"  is  regarded   as   a  frivolous,  as  Mills,  1  Abb.  Pr.  187. 

contradistinguished  from  a  sham,  Sin-  *  Reed  v.  Latson,  15  Barb.  S.  C.  9. 

Bwer ;  and  the  remedy  is  by  motion  for  *  5  How.  Pr.  247 ;  see  also  Nichols  ▼ 


EEC.  VI.]       SHAM,    IKIIELEVANT  AND   FRIVOLOUS.  651 

is  said  that  an  answer  may  be  so  grossly  impertinent  or  frivolous 
that  the  court  cannot  but  see  that  it  was  put  in  for  delay,  or  to 
perplex  the  plaintiff,  instead  of  presenting  a  defense,  and,  in  such 
case,  it  being  a  mere  fraud  upon  the  practice  of  the  court,  it  may 
be  treated  as  a  sham,  or  false  defense,  and  struck  out ;  but  that 
where  a  pleading,  though  technically  frivolous,  does  not  appear  to 
have  been  made  in  bad  faith,  the  remedy  of  the  party  is  by  motion 
for  judgment,  under  section  247,  for,  it  is  added,  a  party  has  the 
right  to  have  any  defense,  honestly  interposed,  passed  upon,  not 
only  in  the  court  of  original  jurisdiction,  but  also  in  the  court 
of  appeals,  and,  therefore,  the  frivolous  answer  should  be 
L*601]  allowed  to  remain  on  the  record.  And,  *  though  in  j5/*c>?/j^ 
V.  Jenison^  in  the  New  York  superior  court,  it  was  said 
that  a  frivolous  answer  might  be  struck  out  on  motion,  yet,  in  the 
later  case  of  Hill  v.  Smith,'  the  judges  of  that  court  qualified 
this  rule,  and  limited  it  to  cases  where  the  objection  does  not 
extend  to  the  entire  answer.  But,  if  the  whole  answer  be  alleged 
to  be  frivolous,  it  cannot  be  struck  out,  the  proper  motion  being, 
under  section  247,  for  a  judgment ;  and  for  precisely  the  same  rea- 
son given  in  D arrow  v.  Miller^  that,  "  as  the  judgment  given,  even 
where  such  is  the  opinion  of  the  judge  or  court,  may  be  errone- 
ous, the  defendant  has  the  same  right  to  have  it  reviewed  upon  an 
appeal  as  if  given  upon  a  demurrer ;'  and,  consequently,  to  enable 
him  to  exercise  this  right,  the  answer,  instead  of  being  stricken 
out,  must  remain  upon  the  record."  The  same  thing  was  decided 
in  the  subsequent  case  of  Quin  v.  Chambtrs  j^  if  but  a  single 
defense  be  set  up,  and  that  applies  to  the  sole  cause,  or  to  all  the 
causes  of  action  contained^  in  the  complaint,  and  the  defense  be 
frivolous,  the  motion  should  be  for  judgment,  leaving  the  answer 
on  the  record ;  if  such  defense  be  applicable  to  one  only  of  sev- 
eral causes  of  action,  or  if  other  defenses  be  also  inter- 
[*602]  posed,  it  *  may  be  struck  out  from  the  record  as  irrelevant.* 

Jones,  6  id.  357 ;  Lefferts  v.  Snediker,  issue  was   plainly  immaterial  or  the 

1  Abb.  Pr.  116.  defense  TOani/es^  groundless. 

>  ;^  Sandf.  732.  •»  1  Duer,  G73. 

'  1  Duer,  049,  8  How.  Pr,  149.  '  This    is    entirely   consistent   with 

^  The  motion,  it  was  said,  is  a  sub-  what  was  said  in  Beed  v.  Latson,  15 

Btitute    for  the  demurrer,  and  raises  Barb.    16,    that    probably    the    court 

substantially  the  same  question  ;  but  always  had  the  power  of  striking  out  a 

it  would  not  be  granted,  unless  the  frivolous  pleading,  as  they  had  a  sham 

pleading ;  and  see  cases  cited. 


652  THE   ANSWER.  [CH.  V. 

And,  perhaps,  in  this  consists  practically  the  essential  point  of 
difference  between  an  irrelevant  and  a  frivolous  answer;  for 
it  is  evident  that  the  one  often,  and  perhaps  usually,  if  not 
always,  includes  the  other.  An  irrelevant  pleading,  says  Justice 
Strong,  in  Seward  v.  IlilUr,^  is  one  which  has  no  substantial 
relation  to  the  controversy  between  the  parties.  An  irrelevant 
defense,  says  Justice  Sill,  in  Darrow  v.  Miller,^  is  one  which 
may  be  true  in  point  of  fact,  but  is  so  impertinent,  or  so  grossly 
frivolous,  that  the  court  cannot  but  see  that  the  object  is  to  delay 
or  perplex  the  plaintiff  instead  of  presenting  a  defense.  An 
irrelevant  answer,  says  Justice  Willard,  in  Harlow  v.  Hamilton^ 
is  one  which  is  good  in  form  and  true  in  fact,  but  which  has  no 
relation  to  the  cause ;  as,  for  example,  a  bankrupt's  discharge  to 
an  action  for  slander.  Now,  each  of  these  definitions  might  very 
well  include  also  2,  frivolous  defense  or  answer  ;  such,  for  instance, 

as  the  case  last  cited,  a  bankrupt's  discharge  in  an  action 
[*603]  for  slander.*     So,  also,  in  an  *  action  on  contract,  if  the 

defendant  should  set  up  in  defense  an  equal  amount  of 

damages  claimed  for  an  assault  and  battery.     Indeed,  the  courts 

do  not  seem  to  have  preserved  in  practice  any  intelligible  line  of 

distinction  between  an  irrelevant  and  frivolous  answer.*     Thus, 

in  Gould  V.  Williams^  an  answer  in  the  old  chancery  form,  which 

neither  controverted  any  allegation  in  the  complaint,  nor  set  up 

any  new  fact  by  way  of  defense,  was  thought  to  be  irrelevant, 

and  would  have  been  struck  out  on  a  motion  for  that  purpose ; 

while  in  Lane  v.  Gilbert^  an  answer  which  controverted  no  fact 

in  the  complaint  and  set  up  matter  which,  though  admissible  as 

'  6  How.  Pr.  313.  also  to  be  true,  comprises  matters 
'  0  id.  2-17.  which  might  have  constituted  a  defeuse 
^  6  id.  475.  in  some  other  action,  or  under  a  differ- 
*  Perhaps,  however,  the  converse  is  ent  state  of  facts  ;  that  is,  wliich  are 
not  strictly  true,  and  a //7'»o?o(/s  would  well  pleaded  in  point  of  form,  but 
not  always  include  an  •irrelevant  which  have  no  possible  connection 
answer.  See  Harlouo  v.  Hamilton,  6  with  tlie  present  subject  of  the  con- 
How.  Pr.  475.  But  for  all  practical  troversy,  and,  therefore,  are  manifestly 
purposes,  I  can  see  no  very  substantial  insuliicient  as  a  defense  to  the  action, 
ground  of  diflerence  other  than  tliat  Under  this  definition  might  be  included 
above  stated.  I  understand  that  a  a  simple  denial,  perfect  in  point  of 
fricoloHs  differs  from  a  strictly  irrele-  form,  but  tuken  upon  an  immaterial 
vaat  answer  in  this  ;  the  first,  assuming  allegation  in  the  complaint, 
it  to  be  true,  and  pertinent  to  the  '  But,  see  Kreiz  v.  Frost,  5  Abb.  N. 
action,  clearly  and  beyond  controversy,  S.  277  ;  Plant  v.  Schuyler,  4^  id.  146,7 
con.stitutes  no  ground  of  defense,  and  Rob.  271. 
raises  no  issue  capable  of  trial  between  *  'J  How.  Pr.  51. 
the  parties.     The  second,  assuming  it  "^  Id.  150. 


SEC.    \'I.]       SHAM,    IKRELEVANT  AND   FRIVOLOUS.  653 

evidence  in  mitigation  of  damages,  was  unnecessarily  pleaded, 
was  held  frivolous,  and  the  proper  course  was  said  to  be  a  motion 
for  judgment.  In  Edson  v.  Dillaye^  the  motion  was  to  strike 
out  as  false  and  frivolous  all  the  answer  to  a  complaint  on  a 
promissory  note,  except  that  part  which  admitted  the  making 

of  the  note ;  and  the  court,  regarding  the  matter  as 
[*604:]  ^frivolous,  ordered  judgment  to  be  entered  for  the  plain- 

tiif  and  his  damages  assessed ;  while,  in  other  cases,  the 
terms  "sham,''  "irrelevant"  and  "frivolous"  have  been  used 
indiscriminately." 

[x\n  entire  answer  or  defense  cannot  be  stricken  out  as  redun- 
dant. That  term  is  properly  applied  to  surplus  or  unnecessary 
matter  contained  in  a  cause  of  action  or  defense.^  An  answer 
may  not  be  irrelevant  although  it  he  frivolous,'' -for  matter  which 
is  pertinent  to  the  cause  of  action  or  defense  is  not  irrelevant ;  * 
although  an  entire  defense  may  be  foreign  thereto  and  therefore 
irrelevant."  A  defense  is  not  irrelevant  simply  because  it  arose 
after  the  commencement  of  the  action."  A  counter-claim  cannot 
be  striken  out  as  irrelevant.  If  there  is  a  defect  in  a  counter-claim 
it  must  be  reached  by  demurrer,  or  by  motion  under  section  160 
to  make  it  more  definite  and  certain."  When  an  answer  is  sham 
the  proper  method  of  obtaining  judgment,  after  an  order  to  strike 
it  out,  is  to  proceed  as  if  no  answer  had  been  interposed.'  A 
pleading  is  frivolous  when  by  the  decisions  of  the  courts  or  the 
settled  rules  of  law  it  is  insufficient.'] 

If  the  views  taken  above,  however,  are  correct,  namely,  that  an 
answer  properly  irrelevant  generally  includes  also  a  frivolous 
answer,  a  plain  and  uniform  rule  of  practice  may  be  adopted  that 
will  reconcile,  in  a  measure,  the  conflicting  decisions  on  this 
subject.  The  motion  in  all  these  cases,  if  the  imperfect  ansM'er 
constitutes  the  entire  defense,  it  is  conceived,  should  generally 
be  for  judgment  on  account  of  the  frivolousness  of  the  answer 
under  section  247.     Or,  if  it  be  doubted  whether  the  answer  may 

>  8  id.  273,  McGregor  v.  McGregor,  35  How.  385 

'-Brown  v.  Jenison,  3    Sandf.   372;  Carpeiiter  y.  Bell, \^oh. 111. 
Fleiiry  v.  Roget,  5  id.  646 ;  Richardson        *  Carpenter  v.  Bell,  1  Kob.  711. 
V.  Wilton,  4  id.  708  ;  Flammer  v.  Kilne,        *  Fattrech  v.  McKay,  47  N.  Y.  426. 
9  How.  Pr.  216.  '  De  Forest  v.  Baker,  1  Rob.  700. 

3  Fasnacht  v.  Stehn,  53  Barb.  650.  «  Collins  v.  Swan,  7  Rob.  623. 

*  FamacJU  v.  Steh7i,  53  Barb.  650; 


664  THE  ANSWER.  [CH.  V. 

not  strictly  be  considered  irrelevant  as  contradistinguished  from  a 
mere  frivolous  defense,*  then  the  motion  may  be,  on  the  usual 
eight  days'  notice  at  special  term,  in  the  alternative  for  judgment 
on  account  of  the  frivolousness  of  the  answer,  or  to  strike  out  the 
game  as  irrelevant ;  and  this,  perhaps,  is  the  safer  course  in  all 
cases.  If  the  defective  answer  be  joined  with  one  or  more  good 
ones,  then,  of  course,  the  motion  must  be  to  strike  out  the  same, 
and  not  for  judgment,  within  the  rule  established  in  Htill  v. 
Smith,  and   Quin  v.  Chambers,   supra.      The  disadvantage  of 

moving  to  strike  out  an  entire  answer,  when  there  are 
[*605]  doubts  as  to  *its  proper  character,  consists  in  this,  that 

the  Code  gives  no  authority  to  strike  from  the  record  a 
merely  frivolous  answer  pleaded  in  good  faith.  The  plaintiff, 
therefore,  in  order  to  succeed  in  such  a  motion,  must  show  that 
the  answer  is  not  only  frivolous  but  also  irrelevant.  Whereas, 
if  he  moves  in  term,  upon  proper  notice,  for  judgment,  he  may 
obtain  it  whether  the  answer  is  irrelevant  or  frivolous,  on  such 
terms  as  the  court  may  prescribe  in  regard  to  permitting  the 
defendant  to  answer  over. 

It  there  be  doubt  as  to  the  irrelevancy  or  frivolousness  of  the 
answer,  the  proper  course  to  be  taken  is  to  demur.'  [It  must  be 
palpahly,  and  at  first  blush,  sham  and  irrelevant.*]  This  subject 
will  be  noticed  in  the  following  chapter  which  treats  of  the 
demurrer. 

SECTION  VII. 

SUPPLEMENTAL  ANSWER. 

The  defendant  is  allowed  by  the  Code  to  make  a  supplemental 
answer,  by  leave  of  the  court,  alleging  material  facts  occurring 
after  his  former  answer,  or,  of  which  he  was  ignorant  when  it 

was  made.* 
[*606]       *  This  is  in  place  of  the  cross-bill  in  the  nature  of  a 

plea  puis  darien,  and  the  supplemental  answer  in  equity, 
and  of  the  plea  puis  darien  conti7iuance  at  law. 

'  See  Lefferts  v.  Snediker.l  Abb.  Pr.  ^  McGregor  v.  McGregor,  35  How 

166.  385 ;  DeForest  v.  Baker,  1  Rob.  700 

'  Slierman    v.    New    York    Central  Smith  v.  Countryman,  30  N,  Y,  655. 

Mills,  1  Abb.  Pr.  187,  and  see  post,  ch,  *  Code,  §  177. 
7,  §111. 


SEC.  VII.]  SUPPLEMENTAL   ANSWER.  655 

In  equity^  a  supplemental  answer  was  allowed  to  correct  an 
error  —  as  a  mistake  in  a  matter  of  fact,  or  to  set  up  facts  of 
which  the  defendant  was  ignorant  at  the  time  of  the  answer ;  or 
facts  which  he  wished  to  set  up  in  his  answer,  but  was  induced  to 
leave  out  by  the  mistaken  advice  of  his  counsel.* 

A  supplemental  answer  was  also  allowed,  in  some  cases,  to 
present  new  matter  of  defense  occurring  after  the  former  had 
been  put  in.  Thus  it  was  held,  that  where,  after  answer  filed,  the 
defendant  obtained  an  exemption  of  his  person  from  imprison- 
ment under  the  act,  he  might  file  a  supplemental  answer  to  pre- 
eent  that  fact."  So  where,  in  a  suit  for  divorce,  the  complainant 
commits  adultery  after  the  answer  of  the  defendant  is  put  in,  she 
will  be  permitted,  if  she  applies  immediately  after  the  discovery 
of  the  fact,  to  set  up  that  defense  by  supplemental  answer.'  She 
might  also  set  it  up,  by  cross-bill,  in  the  nature  of  a  plea  jpuis 
darien  continuance.*  And  generally,  in  equity,  the  defendant 
might  set  up  new  matter  of  defense,  which  had  arisen  after  the 
cause  was  at  issue  by  cross-bill,  in  the  nature  of  a  plea^^i^?**  darien 
continuance^  and  could  not  do  it  by  supplemental  answer,* 
[*607]  as  if  the  complainant  *liad  released  the  defendant,  or 
there  had  been  an  award  made  on  reference  after  issue 
joined,  etc.* 

At  law. — New  matter  of  defense,  arising  after  issue  joined, 
might  be  pleaded  j?zm  darien  continuance  i''  as  that  the  plaintiff 
had  given  a  release,  or  there  had  been  an  award  after  issue  joined, 
or  an  accord  and  satisfaction ;  or  when  two  actions  have  been 
brought  f(»r  the  same  cause,  as  against  makers  and  indorsers  of  a 
promissory  note,  judgment  satisfied  in  one  suit  might  be  pleaded 
puis  darien  continuance  to  the  other  suit.*  The  plea  must 
properly  be  interposed  before  verdict,"  or  report  of  referees."  It 
might  be  pleaded  on  the  trial  when  the  cause  was  called,  or  at 
any  time  after,  before  the  jury  have  actually  delivered  the  verdict." 
But  an  insolvent  has  been  allowed  to  plead  his  discharge  even 

'  1  Barb.  Cli.  Pr.  165.  '  Upon   the  subject,  generally,   see 

2  Ayionymous,  Hopk.  27.  Clinton's  Dig.  2.'570. 

«4Pai<^e  433  *5   Johns.   393,  9   id.    221,  5    Pet 

<  Id. ;  3  Barb.  Ch.  613.  233,  Gould's  PI.  124. 

»  10  Paipe,  485 ;  11  id.  18.  »  1  Cow.  42. 
«  2  Barb:  Ch.  Pr.  128,  Story's  Eq.  PI.,       '»  12  Johns.  218. 

e  81)3  "  Graham's  Pr.  296. 


656  THE   A-NSWER.  [CH.  V. 

after  verdict.'  [Altliougli  if  too  late  for  plea  the  remedy  is  bj  a 
motion  for  a  perpetual  stay  of  execution."]  The  plea  was  not 
required  to  be  verified,  unless  tendered  at  the  circuit,'  and  it  was 
put  in  without  leave  of  the  court.  Its  eifect,  when  offered  at  the 
trial,  was  to  suspend  the  further  proceedings  in  the  cause,  on  such 
terms  as  the  court  might  grant,  as  to  costs.  It  was,  however,  in 
the  discretion  of  the  court  to  receive  the  plea  or  not,  even  after 
more  than  one  continuance  had  intervened.  [If  seasonably 
pleaded  the  court  is  bound  to  receive  it;*  if  not  the  discretion 
of  the  court  will  be  governed  by  circumstances  extrinsic  of, 
[*608]  and  which  *  cannot  appear  on  the  face  of  the  plea.']  A 
plea  puis  darien  continuance  was  not  a  departure  from, 
but  a  waiver  of  the  former  plea,  and  no  advantage  could  afterward 
be  taken  of  it,  nor  could  the  plaintiff  proceed  thereon ;  *  but  this 
rule  was  qualified  so  as  not  to  apply  unless  the  party  abandons 
the  defense  before  relied  on  and  assumes  a  new  one.^  If  the  plea 
was  only  an  answer  to  a  part  of  a  claim,  or  went  to  one  of  several 
counts  or  causes  of  action,  was  a  waiver  of  prior  pleas  only,  jpro 
tanto.^ 

The  matters  which  might  be  thus  pleaded,  puis  darien  were 
such  as  occurred  aftei'  the  former  pleading.  There  was,  however, 
another  rule  at  common-law,  that  it  is  important  to  notice  here, 
namelv,  in  regard  to  matter  of  defense  arising  after  suit,  but 
lyefore  plea  actual  pleaded.  Such  matter  as,  for  example,  a  pay- 
ment or  settlement,  could  not  be  given  in  evidence  under  the 
general  issue,  neither  could  it  be  pleaded  technically  in  lar  of 
the  action;  but  it  miglit  be  pleaded  in  bar  of  the  firtlier  main- 
tenance of  tJie  suit*  This  distinction  was  technical,  and  there 
seems  to  be  no  substantial  reason  why  it  should  be  regarded 
under  the  new  system.  And  this  has  been  so  held  in  the 
recent  case  of  Willis  v.  Chippj^"  in  which  the  defendant  was 
allowed  to  plead  settlement  and  satisfaction  after  suit  brought ; 

'  9  Johns  392  *  10  Johns.  160, 19  Wend.  639. 

«  Cornell  v.  DaUn,  38  N.  Y.  253.  «  5  Pet.    224.    13  id.   136,   152,    10 

8  9  Johns.  250,  1  Wend.  89.  Wend.  675,  14  id.  161. 

*  Bailey  v.  Kny,  50  Barb.  110 ;  Orms-  '  2  Wend.  300. 

hee    V.    Brown,    id.    436 ;    Stewart  v.  »  19  id.  699. 

Mdor,  5    Abb.  N.  S.   68 ;    Smith    v.  «  20  Johns.  414,  5  Hill,  317,  3  Denio, 

Beeves,  33  How.  183  ;  Waldham  v.  Ben-  321. 

der,  36  id.  181 ;  Broome  v.  Bearddey,  '"  9  How.  Pr.  568. 
3  Caines,  172 ;  Sandford  v.  Sinclair,  3 
J)eaio,269',  And  see,post,Qll, marg. p. 


SEC.  YII.]  SUPPLEMENTAL  ANSWEK.  657 

[^^609]  *such  matter,  it  was  held,  constituted  a  full  "defense" 
under  the  Code. 

The  other  general  rules  above  noticed,  both  in  regard  to  the 
common-law  plea  of  puis  darien  continuance^  and  to  the  equity 
supplemental  answer,  and  cross-bill  in  the  nature  of  a  pleaJ9^^^s 
darien^  are,  with  some  slight  modifications,  still  in  force,  and  are 
substantiall}'^  applicable  to  the  supplemental  answer  of  the  Code. 

Thus,  the  Code  permits  a  supplemental  answer,  in  the  nature 
of  a  plea  jpids  darien^  to  be  pleaded  only  on  obtaining  leave  of 
the  court  to  do  so,  as  formerly  under  the  equity  practice.  Where, 
therefore,  the  matter  does  not  arise,  or  is  not  discovered  till  at 
the  trial,  the  court  will  stay  proceedings  and  put  the  cause  over 
on  such  terms  as  may  be  proper  to  enable  the  defendant  to  make 
his  motion.  The  latitude  and  discretion  given  by  the  Code  to 
the  courts  in  respect  to  amendments  do  not  apply,  it  seems,  so 
far  as  to  allow  supplemental  answers  to  be  put  in  in  cases  other 
than  those  prescribed  in  section  177. 

In  equity,  as  we  have  seen,  the  supplemental  answer  was  used 
to  correct  an  error  or  mistake,  or  to  set  up  facts  which  the  party 
was  induced  to  leave  out  by  the  mistaken  advice  of  his  counsel.* 
The  Code,  however,  it  seems,  restricts  the  right  to  file  a  supple- 
mental answer,  in  all  these  cases  of  error,  to  the  one  class 
[*610]  of  facts  mentioned  in  the  above  section,  *  namely,  "  of 
which  the  party  was  ignorant  when  his  former  pleading 
was  made." 

It  w^ould  appear,  therefore,  that  the  supplemental  answer  is  not 
to  be  used  to  correct  errors  or  mistakes,  as  it  might  have  been 
under  the  chancery  practice,  but  it  is  to  be  confined  to  its  proper 
sphere  of  alleging  facts  material  to  the  case,  which  either 
occurred  after  the  former  answer,  or  of  which  the  party  shall  show 
himself  ignorant  at  the  time  of  the  pleading.  If  the  defendant 
has  knowledge  of  the  fact  sought  to  be  pleaded  at  the  time  of  the 
former  pleading,  and  neglects  to  do  so,  he  cannot  supply  the 
omission  by  supplemental  answer,  or  even,  it  seems,  unless  for 
special  reasons  by  amendment." 

A  distinction  between  the  supplemental  answer  of  the  Code 
and  the  common -law  plea  oi  jpuis  darien  continuance  is  noticed 

5  How.  Pr.  420.  » Houghton  v.  Skinner,  5  How.  Pr.  420. 

83 


658  THE  ANSWER.  [CH.  V. 

by  Justice  Geidley,  in  Drought  v.  Curtiss  and  Peake}  The 
former  is  allowed  on  motion,  whenever  the  facts  forming  the 
gi'ound  of  the  answer  have  occurred  since  the  answer  was  put  in, 
or  where  the  defendant  was  ignorant  of  them  at  the  time  of 
pleading  the  first  answer ;  the  latter  could  strictly  be  pleaded 
only  before  or  at  the  next  continuance  after  the  facts  transpired. 
Where  the  facts,  asked  to  be  incorporated  and  pleaded  in  a  sup- 
plemental answer,  are  an  entire  satisfaction  of  the  cause 
[*611]  of  action,  and  *  extinguish  the  plaintiff's  right  to  prose- 
cute it,  such  as  a  transfer  of  the  cause  of  action  pending 
the  suit  to  another,  wdio  has  received  satisfaction  for  the  demand 
involved  in  it,  it  is  the  duty  of  the  court  to  grant  the  motion. 
The  word  may^  in  such  a  case,  says  the  decision  last  cited,  means 
TTiust  I  and  it  will  make  no  difference  whether  the  motion  was 
made  at  the  earliest  day  or  not. 

It  seems,  however,  even  under  the  old  system,  that  though  a 
defense,  by  way  of  supplemental  answer,  was  not  a  matter  of 
right,  if  a  term  had  intervened  since  the  happening,  and  the 
defendant  has  neglected  to  apply  at  the  first  opportunity,  yet  the 
court-has  discretion  to  allow  it."  This  discretion  has  been  liber- 
ally exercised  since  the  Code.  In  a  case  at  special  term,  not 
reported,"  Justice  Harris  allowed  a  supplemental  answer  to  be 
interposed,  which  claimed  to  set  up  as  a  defense  that  the  plain- 
tiff*'s  demand  had  become  merged  or  extinguished  by  operation 
of  law,  resulting  from  the  fact  that,  pending  the  suit,  he  had 
become,  by  purchase,  under  a  foreclosure  sale,  the  owner  of  real 
estate  of  the  defendant,  on  wdiich  he  held  certain  securities  as 
collateral  to  the  demand  in  suit ;  and  this,  too,  although  after  the 
happening  of  the  fact,  several  terms  had  intervened,  at  which  the 
motion  could  have  been  made. 

In  regard  to  the  equity  supplemental  answer  proper, 
[*612]  and  the  cross-bill  in  the  nature  of  a  plea  *puis  darien, 
the  Code  has  doubtless  intended  to  abolish  such  a  distinc- 
tion, and  designs  to  give  the  defendant,  by  supplemental  answer, 
all  the  relief  he  could  have  had  in  either  form  of  pleading, 
except  as  heretofore  noticed,*  in  regard  to  facts  occurring  after  suit 

'  8  How.  Pr.  56.  *  Mnmh  v.  BarnJiart,  Albany  special 

'  4  Johns.  255,  10  id.  161 ;  19  Wend,     term,  November,  1854. 
639  [See  ante,  607,  marg.  p\.  *  Ante,  pages  609,  610. 


.SEC.  Xn.']  SUPPLEMENTAL   ANSWEE.  659 

brought  and  before  answer,  no  supplemental  answer  can  be 
i-e:|uired ;  but  they  may  be  pleaded  generally  in  bar  within  the 
decision  in  Willis  r.  CMpp,supra^  "Any  facts,"  says  the  court 
in  that  case,  "  existing  at  the  time  the  defendant  answers,  and 
wliich  show  that  the  plaintiff  ought  not  to  have  a  judgment 
against  the  defendant,  may  be  inserted  in  the  answer."  This,  of 
course,  may  include  all  defenses,  whether  legal  or  merely  equita- 
ble, and  generally  any  matter  of  counter-claim,  except,  perhaps, 
a  set-off  in  an  action  on  contract.  By  section  150,  amended  Code, 
the  set-oif  must  exist  at  the  time  of  the  commencement  of  the 
action.  Suppose,  after  suit  commenced  on  contract,  and  before 
answer,  a  cause  of  action  accrues  to  defendant  against  the  plain- 
tiff for  breach  of  another  contract,  can  he  avail  himself  of  such 
defense  in  the  same  suit?  The  cause  of  action  must  exist  at  the 
commencement  of  the  suit,  and  could  not,  therefore,  be  directly 
pleaded  in  defense  as  a  counter-claim ;  but  after  answer,  might  it 
not  be  allowed  to  be  set  up  as  a  new  fact  material  to  the  case  in  a 
supplemental  answer?  Payment  after  answer  may  be 
[*613]  pleaded,''  and  settlement  of  suit,  *  and,  generally,  any  equit- 
able matter  of  defense  ;  and  why  should  set-off  be  exclud- 
ed ?  There  is  certainly  an  equitable  right  with  the  defendant,  inde- 
pendent of  the  Code,  to  have  a  claim  against  the  plaintiff's  set-off 
against  the  plaintff's  demand  of  a  like  nature,  as  in  equity,  one 
judgment  miglit  be  set  off  against  another ;  and  I  do  not  perceive 
why  such  a  set-off,  occurring  after  the  answer,  at  least  in  a  con- 
tract directly  between  the  parties,  and  where  some  peculiar  equity 
exists,  as  insolvency,  etc.,  should  not  be  allowed  by  way  of  sup- 
plemental ansAver. 

The  court,  before  granting  leave  to  put  in  a  supplemental 
answer,  must  be  satisfied  that  the  facts  to  be  set  up  are  material 
to  a  defense.  A  release  from  the  defendant  to  the  plaintiff,  in  an 
action  to  recover  personal  property,  cannot  be  pleaded  7;>w^s 
darie7i  to  the  sheriff's  action  on  the  replevin  bond."  [A  submis- 
sion to  arbitration  is  merely  a  discontinuance  and  cannot  be 
pleaded.  The  remedy  is  by  motion  and  not  by  plea.*]  But  an 
arbitration  and  award,  as  well  as  an  accord  and  satisfaction,  are 

'  9  How.  Pr.  mQ.  3  12  Wend.  303. 

«  Brown  v.  Richardson,  7  Rob.  57  ;        "2  Hill,  387. 
Ormnhee  v.  Brown,  50  Barb.  436. 


660  THE  AT^swEK.  [cir.  v. 

defenses,  and,  if  occurring  after  the  answer,  are  proper  to  be  set 
up  in  the  supplemental  answer.  Nor  need  it  be  matter  which 
will  constitute  an  entire  defense.  It  is  sufficient  if  it  be  a  fact 
material  to  the  case  —  a  fact  which  will  go  toward  establishing  a 
defense.  Thus,  in  Radley  v.  Houghtaling,^  in  an  action  for 
assault  and  battery,  Justice  Paeker  allowed  a  supplemental 
answer  to  be  put  in,  setting  up  that,  since  the  commence- 
[*614]  ment  of  the  *  suit,  an  action  for  slander  had  been  com- 
menced by  the  defendant  against  the  plaintiff,  in  which 
the  plaintiff  set  up  the  same  assault  and  battery,  in  mitigation  of 
damages,  whereby  the  verdict  was  reduced  to  six  cents.  "I 
think,"  he  remarks,  "  the  facts  which  transpired  on  the  former 
trial  are  material  to  the  case.  How  far  they  will  go  toward 
establishing  a  defense  it  is  not  necessary  to  say.  That  question 
will  be  decided  at  the  circuit  in  such  a  form  as  to  afford  either 
party  an  opportunity  to  review  the  decision."  Leave  was  granted 
to  put  in  such  answer  within  ten  days,  with  twenty  days  to  the 
plaintiff  to  reply. 

A  supplemental  answer  differs  from  an  amended  answer.  Cir- 
cumstances happening  after  answer  are  not  to  be  set  up  by 
amendment  but  should  be  brought  before  the  court  by  a  supple- 
mental pleading.'  This  was  held  to  be  the  rule  in  regard  to  the 
complaint.  Thus,  where  one  of  the  defendants  transferred  to  a 
person,  not  a  party  to  the  suit,  his  interest,  after  the  action  was 
commenced,  it  was  held  that  the  plaintiff  could  not  amend  his 
complaint  but  must  apply  for  leave  to  make  such  person  a  party 
by  supplemental  complaint.'  A  similar  rule,  it  is  presumed, 
applies  to  the  answer ;  *  the  fact,  however,  as  we  have  seen,  must 
occur  after  the  former  answer  and  not  intermediate  the  time  it 
was  put  in  and  the  commencement  of  the  suit.' 

'  4  How.  Pr.  251.  *  Hastings  v.  McKinley,  1   Smith's 

•^  Madison, etc.,v.  Baptist,  eic.,2'Ro\>.  N.  Y.  Com.  PI.   273   [affirmed,  Seld 

642.  notes,  Oct.,  1853,  p.  19]. 

"  Hornfag&r   v.  E<yrnfager,  1  C.  R.  *  Ante,  marg.  p.  475. 

N.  S.  180. 


CHAPTER  V.(A) 

DEFENSES. 

[It  was  intended  to  give  a  list  of  defenses  and  tlie  law  thereof 
Bomewhat  similar  to  the  new  chapter  upon  complaints.  After 
collecting  some  of  the  materials  therefor,  it  was  found  impossible 
to  do  so  for  the  reason  that  the  volume  would  thereby  be  swollen 
to  undue  proportions.  Only  a  very  brief  article  upon  a  few 
defenses  can  be  given. 

Abatement.  —  Misnomer  must  be  pleaded  in  abatement ; '  so 
that  defendant,  when  arrested,  was  attending  court,  and,  therefore, 
privileged  from  arrest,  must  be  taken  advantage  of  by  motion  for 
his  discharge  or  by  plea  in  abatement ; "  so  that  the  plaintiff,  in  a 
suit  commenced  by  attachment  under  the  Revised  Statutes,  is  a 
non-resident  of  the  State,  may  be  so  pleaded.'  Submission  of  the 
matters  involved  in  an  action  to  arbitration  usually  operates  as  a 
discontinuance  jper  se  /  *  otherwise  if  the  parties  expressly  agree 
that  it  shall  not.*  It  is  not  sufficient,  under  a  plea  of  non-joinder 
of  parties  plaintiff,  to  show  that  the  note  in  suit  was  given  to  the 
plaintiff,  one  of  the  members  of  a  firm,  with  the  assent  of  the 
firm  for  moneys  loaned  from  its  funds  under  a  contract  therewith." 
Non-joinder  of  a  partner  is  no  defense  to  a  firm  note  by  its 
express  terms  joint  and  several ; '  so  it  is  no  defense  that  defend- 
ants partner  is  not  joined  unless  he  contracted  as  a  partner.*  The 
answer  should  allege  that  the  party  claimed  to  be  necessary  is 
living;*  or  if  a  corporation  that  it  is  still  in  existence."  If  the 
answer  do  not  allege  that  the  party  claimed  to  have  been  improp- 
erly omitted  be  living,  the  error  is  cured,  if  the  fact  be  proven 

'  Miller  v.  Stettiner,  22  How.  518,  7        *  Buel  v.  Dewey,  22   How.  342,  and 

Bosw.  692  ;  Traver  v.  Eighth  Av.  R.R.,  numerous  cases  there  cited. 
3  Keyes,  497,  6  Abb.  N.  S.  48 ;  Morley        ^  Bud  v.  Dewey,  22  How.  342. 
V.  Laio,  2  Brod.  &  Bing.  34.     See  Bent        "  Mynderse  v.  Snook,  1  Lans.  488. 
V.  Bent,  43  Verm.  42.  '  Snow  v.  Howard,  35  Barb.  55. 

2  Randall  v.  Crandall,  6  Hill,  342.  «  Peck    v.    Comng,    1    Denio,    222  ; 

^  Downes  v.  Phcenix  Bank,  6   Hill,  Cookingham  y.  Lasher, 'd%  Barb.  656,  3 

297  ;  but,  see  flatter  of  Marty,  3  How.  Keyes,  454. 

20S,  2  Barb.  436;  Ready  v.  Stewart,  1        '  Burgess  v.  Abbott,  1  Hill,  476,  6  id. 

Code  R.  N.  S.  2d7.  135  ;  Taylor  v.  RicJiards,  9  Bosw.  679. 

'"  State  V.  Woram,  6  Hill,  33. 


662  DEFENSES.  [CH.  V  A. 

without  objection.'  If  the  non-joinder  of  a  necessary  plaintiff 
appear  upon  the  flice  of  the  complaint,  the  defendant  may  avail 
himself  of  the  defense  upon  the  trial,  without  pleading  it  in  abate- 
ment,^ or  may  demur,^  even  though  the  complaint  do  not  show 
he  be  living.*  If  an  executrix  marry  after  suit  brought  in  her 
favor  or  against  her,  as  such,  the  suit  abates  until  the  husband  be 
made  a  party ;  *  although  in  'New  York  qfte?'  verdict,  and  in 
certain  other  cases,  a  suggestion  of  the  fact  may  be  made  upon 
the  record  and  the  suit  proceed.' 

Accord  and  satisfaction.  —  If  a  debtor  give  an  order  on  a 
third  person,  which  is  accepted  and  paid,  it  is  a  good  accord  and 
satisfaction.'  So  payment  in  goods  at  an  agreed  price ;  *  and  so 
where  the  debt  is  barred  by  the  statute  of  limitations,  pay- 
ment of  part,  in  satisfaction,  will  not  revive  the  balance.'  It  is  a 
good  accord  and  satisfaction  if  the  creditor,  by  the  agreement, 
acquire  the  security  of  the  obligation  of  a  third  person ;  this  is 
sufficient ; "  and  if  accepted  to  be  in  full,  if  paid  when  due,  the 
condition  is  waived  by  accepting  payment  after  maturity."  So  if 
the  debtor  give  security. "*  Payment  of  part  of  a  debt  before  it  is 
due,  in  full  payment  of  the  claim,  is  a  good  accord  and  satisfac- 
tion.'' But  the  acceptance  of  an  obligation  of  a  third  person  does 
not  operate  as  an  accord  and  satisfaction  or  payment  unless  ex- 
pressly so  agreed  ;  '*  even  though  a  receipt  in  full  be  given."  Other- 
wise if  there  be  such  an  agreement,''  and,  it  seems,  the  check  of 

'  Wooster  v.  Chamberlain,  28  Barb.  Freeland  v.  Van  Campen,  36  How.  29  J 

602.  PhiWps  V.  Berger.  2  Barb.  613,  8  id- 

^  Rice  V.  Hollenheck,  19  Barb.  664.  527  ;    Freeland    v.    Van    Vampen,  36 

»  Burgess    v.   Abbott,  1    Hill,    476 ;  How.  29. 

Eaton  V.  Balcom,  33  How.  81.  "  Conkling  v.  King,  10  N.  Y.  440. 

*  Eaton  V.  Balcom,  33  How.  81 ;  but,  '^  Phillips  v.  Berger,  2  Barb.  608,  8 
Bee  Schofield  v.  Van  Syckle,  23  How.  id.  527. 

97.  '^  Boidker  v.  CJiilds,  1  Am.  Law  Reg. 

*  Swan  V.  Wilkinson,  14  Mass.  295 ;  N.  S.  504,  New  York  court  of  appeals. 
QuackeiibushY.  Leonard,  \OVa\get,Vd\.    Arnold  v.  Park,  8  Bush.  (Ky.)  3.     In 

«  2  R.  S.  387-8,  §§  8-13,  2  Edm.  Stat.  Vermont  it  has  been  held  that  the  sur- 

462-3.  render  of  a  note,  and  the  acceptance 

'  Nevins  v.  Depierres,  1  Edm.  Sel.  of  one  for  a  less  amount  in  payment, 

Cas.  197;  Stagg  v.  Alexander,  b^  Barb,  is  equivalent  to  a  release  under  seal. 

70.  Drapar  v.  Hitt,  43  Vt.  439. 

*  ^nffncy  V.  Chapman,  4  Rob.  275.  '^  Darnell  v.  Morehouse,  36  How.  511 ; 
^  Bi'rrian  v.   Mayor,    4    Rob.    538;  Gibson  \.  Toby,  ^^Z^zxh.l^X. 

United  States  v.  Wilder,  13  Wall.  254;       '^  Busimll  v.   Poineer,  4  Abb.  N.  S. 

Morgan  v.  Botdands,  2  Eng.  Rep.  611 ;  244  ;    Gibson  v.    Toby,  53   Barb.   191 

L.  R.,  7  Q.  B.  493,  and  note,  2  Eng.  R.  Turner  v.  Bank,  3  Keyes,  425. 
617.  '6  Roberta  v.  Fisher,  53  Barb.  69. 

^'^  Eeeler  v.  Salisbury,  27  Barb.  485; 


en.  VA.]  DEFENSES.  663 

the  debtor  may  be  received  in  discharge  of  his  obligation.'  A 
mere  parol  release  of  a  debt,  without  consideration,  is  void."  An 
unsealed  receipt  by  one  of  two  joint  creditors,  expressed  to  be  in 
full  of  his  half  of  the  debt,  but  for  a  sum  of  money  less  than  a 
moiety,  and  without  any  other  consideration,  does  not  split  the 
demand,  and  constitutes  no  bar  to  a  recovery  by  both  creditors  of 
the  amount  due.  If  the  creditor  giving  the  receipt  subsequently 
give  a  release,  under  seal,  expressing  a  new  consideration  and 
releasing  the  debtor  as  to  a  moiety,  the  misjoinder  of  the  releasor 
may  be  cured  at  the  trial  by  striking  out  his  name,  and  the  other 
creditor  may  recover  his  moiety.'  A  fiither  may  release  to  his 
son,  without  any  consideration,  except  natural  love  and  affection.* 
A  debtor  cannot  rely  upon  a  parol  agreement  of  another  to  pay 
his  debt,  as  such  agreement  is  void  by  the  statute  of  frauds.  There 
must  be,  by  an  arrangement  between  all  the  parties,  a  substitution 
of  such  third  person  in  his  stead  as  the  only  debtor,  or  there  must 
be  a  performance  of  the  agreement.  Willingness,  by  such  third 
person,  to  pay,  is  not  sufficient/ 

Payment,  by  the  debtor  himself,  of  less  than  the  amount  of  the 
debt,  does  not  extinguish  it,  although  the  creditor  expressly  agree 
to  receive  it  in  full,'  unless  the  transaction  be  of  such  a  character 
that  it  amounts  to  a  compromise  of  an  honestly  disputed  claim.'' 
A  new  agreement  without  performance  is  not  an  accord  and  sat- 
isfaction, unless  made  in  lieu  of  the  former  f  an  executory  agree- 
ment for  an  accord  and  satisfaction  is  not  a  bar,  althouo-h 
performance  be  tendered,  if  it  be  not  accepted  ;°  so  a  plea,  that 
the  amount  of  plaintiff's  claim  was  allowed  him  on  settlement 
between  the  parties,  is  not  good.  The  plaintiff'  had  a  right  for 
the  support  of  his  house ;  the  defendants,  in  working  a  mine 
thereunder,  removed  the  strata  of  minerals  without  leaving  proper 

'  Turner  v.  Bank,  3  Keyes,  425.  "'  Hammond  v.  Christie,  5  Rob.  160. 

*  Doty  V.  ^¥ilsoll,  5  Lans.  7.  *  C lough  v.  Murray,  3  Rob.  7.     Tliia 
^  Carringtan  v.  Crocker,  4  Abb.  N.  S.    is  a  very  carefully  considered  case. 

335.  9  Tilton  v.  Alcott,  16  Barb.  598  ;  Rose 

*  Arnold  v.  Park,  8  Bush.  (Ky.)  3.         v.    Daniels,    8    R.    I.    381  ;   but,   see 
'Buchanan   v.   Paddleford,  43   Vt.     Dolsen  v.  Arnold,  \Q  How.  528 ;  Balde 

14.  v.-  Smith,  5  Ch.   Sent.  11  ;    Osborn  v. 

"^  Bunge  v.  Koop,  5  Rob.  1 ;  Phillips  Bobbins,  37  Barb.  481  ;  the  reversal  of 

V.   Bcrgcr,  2   Barb.    612;    Oarvey    v.  this  case  (36  N.  Y.  365)  proceeded  upon 

Jarris,  5<:  id.  179  ;  Titsioorth  v.  Hyde,  diflferent  grounds.     Phillips  v.  Bergcr, 

51  111.  i;8G ;  Rose  v.  Daniels,  8  R.  I.  2  Barb.  612. 
381. 


664  DEFENSES.  [CII.  V  A.. 

pillars.  Plaintiif  commenced  an  action  which  was  compromised 
by  defendants  repairing  the  damages  to  the  satisfaction  of  a  sur- 
veyor, which  they  did  ;  held,  a  good  answer  to  another  action  for 
a  subsequent  sinking  of  the  house.  * 

Administrator.  —  A  plea  by  an  administrator,  that  before  he 
had  any  notice  of  plaintiff's  claims  he  had  fully  administered  the 
estate,  is  no  defense.' 

AdTancement.'  —  If  a  parent  make  an  advancement  —  even 
though  by  a  verbal  agreement  —  to  a  child,  it  is  a  good  defense  to 
his  action  for  his  portion  of  the  estate,  though  the  portion  sought 
to  be  recovered  be  real  estate  ;*  although  an  advancement  should 
primarily  be  chargeable  upon  the  real  estate.*  The  fact  that 
money  or  property,  delivered  to  a  child  or  wife,  was  intended  as 
an  advancement,  may  be  proved  by  the  declaration  of  the  parent ; " 
unless  such  evidence  contradicts  a  writing ; '  the  presumption  is 
that  it  Avas  an  advancement ;  *  and  the  language  of  a  will  may 
make  it  such,  although  a  note  was  given  which  the  testator  in- 
tended at  the  taking  should  be  paid." 

Adverse  possession.  —  The  statute  which  makes  a  grant  of 
land  held  adversely  void,  only  applies  to  so  much  of  the  grant  as 
covers  the  lands  so  held.'" 

Arrest,  exemption  from.  —  It  is  a  valid  defense  to  an  action 
against  a  sheriff  for  not  arresting  a  party ;  that  he  was  exempt 
from  arrest."  An  officer  who  justifies  an  arrest  without  warrant, 
on  a  suspicion  of  felony,  should  set  forth  the  grounds  of  the  sus- 
picion, so  that  the  court  may  jndge  of  them  whether  they  afford 
probable  cause  or  not." 

Assault  and  battery.  —  It  is  a  good  plea  to  an  action  of  assault 

'  Aicklin  v.  Williams,  10  Excheq.  259.  Me.  314  ;  Estate  of  Charles  Dewees,  3 

*  Coinmisfdoners     of    Education     v.  Brewst.  314,  7  Philadelphia  R.  498. 

Loughium,  d  Irish    L.    716;    Baggott  ^  Terry  \.  Dayton,^!  B&rh.  51%. 

V.  Boulger,  2  Duer,  160,  2   R.  S.  89,  «  Hicks    v.    Gilder  sleeve,  4   Abb.   1 ; 

(5§   39,  40 ;    Moorehouse  v.  Ballou,  16  Tillertson  v.  Race,  22  N.  Y.  122  ;  Wool- 

Barb.  294,  1  Chitty's  PI.  489.  ery  v.  Woolery,  29  Ind.  249. 

^  As  to  what  is  an  advancement,  see  '  Chase  v.  Ewing,  51  Barb.  598. 

Berry  v.  Morse,  1  House  of  Lords  Cases,  *  Welton     v.    Divine,    20    Barb.   9  ; 

70;   West's   Ch.    Ill,    note,  Dunlop's  Woolery  y.  Woolery,22  lnd..24Q. 

note,  1  Sim.  &  Stu.  3 ;  id.  to  Upjohn  v.  »  Tillotson   v.  Race,  22  N.  Y.    123 ; 

Upjohn,  7  Beav.  152;  Smith  v.  Smith,  Clmse  v.  Ewing,  51  Barb.  597. 

59  Me.  214.  '»  Towle  v.  Smith,  2  Rob.  489. 

•»  Parker  v.  McClure,  36  How.  301,  5  •••  People  v. Campbell,  40  N.  Y.  133. 

Abb.   N.  S.   97 ;   Smith  v.  Smith,  59  ''^  Wn,de  v.  Chaffee,  5  Am.  R.  574,  8 

R.  I.  572. 


CH.  VA.]  DEFENSES.  665 

and  battery,  that  one  A  was  possessed  of  a  close  in  wliicli  the 
plaintiff  was  making  a  noise,  and  that  the  defendant,  as  a  servant 
of  A,  and  bj  his  command,  requested  plaintiff  to  depart,  which 
he  refused  to  do,  whereupon  defendant  laid  his  hands  upon  plain- 
tiff, doing  him  no  unnecessary  injury.*  The  plea  of  son  assault 
demesne  must  show  that  tlie  injury  was  necessarily  inflicted  by 
defendant  in  his  own  defense,  and  if  the  plaintiff  prove  an  excess 
of  force  it  is  no  defense.*  It  is  good  defense  that  the  plaintiff 
unlawfully  entered  upon  defendants  premises  and  possessed  him- 
self of  the  defendant's  goods,  when  the  defendant  assaulted  the 
plaintiff  and  ejected  him  from  said  premises,  using  no  more  force 
than  was  necessary  to  retain  his  property  and  prevent  its  removal.' 
The  degree  of  force  necessary  depends  upon  the  exigencies  of  the 
case ; '  so  it  is  a  good  defense  that  the  plaintiff  was  disturbing  a 
religious  meeting  and  that  defendant  removed  him  therefro-m, 
using  only  sufficient  force  for  the  purpose ;  *  so  that  plaintiff  was 
defendant's  apprentice  and  conducted  himself  improperly,  where- 
upon defendant  moderately  chastised  him.* 

Assignee.  —  It  is  a  good  defense  to  an  action  by  the  assignee  of 
a  mortgage  that  the  mortgagor  had  before  the  assignment  rendered 
services  for  the  mortgagee  which  he  agreed  to  apply  upon  it.* 

Attorney.  —  An  executor  or  trustee,  who  employs  an  attorney, 
is  liable  to  him  personally,  and  it  is  no  defense  that  the  attorney 
rendered  the  services  for  the  defendant  in  his  representative 
capacity.' 

Award.  —  It  is  a  good  defense  to  an  award  that  the  arbitrators 
proceeded  without  notice  to  the  defendant,  or  that  they  made  the 
award  before  the  defendant  had  closed  his  proofs.*  An  answer 
which  alleges  that  the  arbitrators,  in  computing  the  amount,  made 
a  clerical  error  in  computing  the  amount  to  be  awarded,  and  that 
the  award  is  the  result  of  such  clerical  error  is  good  on  demurrer, 
although  it  do  not  show  what  the  character  of  the  mistake  was.* 

Bail.  —  A  sheriff,  who  arrests  a  defendant  who  does  not  give 

'  Piggott  V.  Kemp,  1  Cromp.  &  Mees.  *  Hartley  v.  Tatham,  1  Rob.  246. 

197.  '  Bmoman  v.   Tallman,  2  Rob.  385, 

^  Dean  y.  Taylor,  liExcheq.  68.  affirmed,   41    N.  Y.    619;    Ferrier    v. 

»  Oyre  v.  Cu'lve,  47  Barb.  592.  Myrick,  41  id.  315. 

*  Wall  V.  Lee,  34  N.  Y.  141.  »  Garvey  v.  Carey,  4  Abb.  N.  S.  15St 

»  Penii  V.  Ward,  2  Cromp.,  Mees.  &  05  How.  282,  7  Rob.  286. 
Rose.  338. 

84 


666  DEFENSES.  [CII.  V  A. 

bail  or  make  tlie  deposit  required  by  statute,  is  liable  to  tlie  plain- 
tiiF,  after  an  execution  against  the  defendant's  body  is  returned 
non  est^  for  the  amount  of  the  judgment,  and  it  is  no  defense  that 
the  defendant  is  insolvent.' 

Bailee.  —  It  is  a  good  defense  by  a  bailee  that  the  property 
intrusted  to  him  did  not  belong  to  the  bailor  but  to  a  third 
person,  who  had  taken  the  goods,  or  that  they  had  been  taken 
from  his  possession  under  an  attachment  against  the  true  owner ; ' 
and  so  when  the  property  is  taken  from  the  bailee  by  legal  process 
against  the  bailor  if  the  latter  be  immediately  notified  of  such 
taking ; '  although  this  will  not  protect  the  bailee  when  he  has, 
before  the  taking,  become  liable  by  reason  of  not  having  delivered 
the  property,  or  not  having  given  notice  to  the  consignee ;  *  so  it 
is  a  defense  to  an  action  by  the  consignee  that  the  consignor 
directed  the  carrier  to  deliver  the  goods  to  a  third  person  if  the 
consignee  do  not  object/ 

Baiiki'upt  discharge.  —  A  debtor,  who  relies  upon  a  bank- 
rupt discharge  in  another  country,  must  plead  the  law  which, 
authorizes  it,  such  proceedings  thereunder  as  authorized  the  dis- 
charge, and  the  discharge  itself,  or  facts  which  operate  as  an 
extinguishment  of  the  plaintiif 's  claim ; '  although  under  our  own 
statute  a  shorter  method  of  pleading  a  discharge  is  allowed/  A 
plea  in  bankruptcy  is  not  good  as  a  defense  against  an  action  to 
rescind  a  contract  on  the  ground  of  fraud ; '  but  it  is  good 
although  plaintiff  did  not  have  notice  of  the  proceedings,  it'  the 
neglect  to  notify  him  was  not  willful  or  fraudulent ; '  nor  if  the 
creditor  has  consented  to  such  omission/"  If,  however,  the 
omission  to  notify  the  plaintiff  of  the  proceedings  in  bankruptcy 
be  fraudulent  the  discharge  is  invalid  as  against  him." 

'  Bensel  v.  Lynch,  2  Rob.  448.  »  HuHbell  v.  Cramp,  11   Paige,  310  ; 

"^  Huntington  v.  Douglass,  1  Rob.  204,  Small  v.  Graves,  7  Barb.  576;  American, 

1  Abb.  N.  S.  385 ;  Tahor  v.  Gardner,  6  etc.,  v.  Son,  3  Abb.  N.  S.  333,  7  Rob. 

Abb.  N.  S.  148.  233  ;  Symonds  v.  Barnes,  11  Am.  Law 

3  Bliven  v.  Hudson  River  R.  R.,  86  Reg.    N.  S.  421,  59  Me.  191 ;   Payne 

N.  Y.  403.  V.  Able,  4  Bankruptcy  Reg.  67  ;  Barnes 

*  Mierson  v.  Hor}.\  2    Sweeny,  561  ;  v.  Moore,  2  Am.  Law  Times  (folio)  92, 
see  McAndreiP\.  Wlritlock.'i,  ia.  632.  by  the   Sup.  Ct.  of   Cincinnati  to  the 

*  Piatt  V.  Wells,  2  Rob.  101 ;  Krulder  contrary  is  not  good  law. 

V.  ElliKon,  47  N.  \.  ;]6.  '"  In  re  Wetmore,  2  Am.  Law  Timea 

'  Philipe  V.  Jam.  s,  3  Rob.  720.  (folio)  105  ;  In  re  Needham,  1  Lowell's 

'  United  States  Bankrupt  Law,  §  34.  Dec.  309. 

"  Smith  V.  Babcocic,  2  Woodb.  &  Min.  •'  Bachelder  v.  Low.  43  Verm.  663. 

247. 


CII.  VA.]  DEFENSES.  667 

Broker.  —  In  a  suit  by  a  factor  or  broker  for  advances  made 
upon  property  consigned  to  him,  defendant  pleaded  that  plaintiff 
was  acting  as  a  factor  for  defendant,  and  as  such  had  in  his  posses- 
sion a  certain  large  quantity  of  leather  belonging  to  defendant  of 
a  certain  value.  That  before  that  time  defendant  had  instructed 
plaintilf  not  to  sell  such  leather  at  less  than  thirty  cents  a  pound 
over  and  above  costs  and  charges ;  but  that  plaintiff,  in  violation 
of  such  instruction,  sold  the  leather  for  thirty  cents  a  pound,  sub- 
ject to  all  costs  and  charges,  wherefore  the  price  of  the  leather 
was  reduced  to  twenty  cents  a  pound  above  costs  and  charges,  and 
demanded  judgment  for  a  certain  amount  of  damages.  Held,  a 
good  counter-claim.' 

Canadian  judgments.  —  Judgments  rendered  in  Canada  are 
only  ■prhna  facie  evidence,  and,  in  an  action  upon  such  a  judg- 
ment, the  defendant  may  set  up  any  defense  or  counter-claim, 
except  where  he  appeared  in  the  cause  and  was  heard,  and  gave 
evidence  therein.'^ 

Carrier.  —  A  domestic  carrier  in  order  to  discharge  himself 
from  liability  must  transport  the  goods  to  their  destination,  notify 
the  consignee  of  their  arrival,  and,  if  not  called  for  within  a  reason- 
able time,  store  them  for  the  benefit  of  the  consignee.'  If  a  carrier 
from  a  foreign  port  he  must  land  the  goods  at  the  time  and  place 
and  in  the  manner  prescribed  by  the  custom  of  the  port,  giving 
notice  to  the  consignee,  if  it  be  usually  given  at  the  port.  If  not 
called  for  by  the  consignee  he  must  usually  store  the  goods  on  his 
account." 

Collector  of  an  estate.  —  Although  an  equity  suit  by  an 
administrator  lies  against  a  temporary  collector  to  compel  him  to 
account,  yet  the  pendency  of  proceedings  before  the  surrogate  for 
an  accounting,  if  set  up  by  answer,  is  a  defense." 

Consideration,  want  of.  —  Where  the  defendant  relies  upon 
the  want  of  consideration  of  a  contract  which,  on  its  face,  shows  one, 
lie  must  plead  such  want  of  consideration ;  so  where  he  interposes 
an  agreement  which  does  not  on  its  face  show  a  consideration  he 
must  allege  and  show  one.  A  promise  by  the  lessor,  after  the 
making  of  the  lease,  to  make  a  deduction  from  the  rent  on  account 

'  Mooney  v.  Misser,  34  Ind.  373.  474 ;  Mierson  v.  Hope,  2  Sweeny,  568 

^  Laws  N.  Y.  Ici68,  vol.  2,  p.  1333.  McAndrew  v.  WMtlock,  3  id.  633. 

3  Atlantic,  etc.,  v.  Johnson,  4  Rob.        •*  Christy  v.  M)by,  5  Abb.  N.  S.  200. 


668  DEFENSES.  [CH.  V  A. 

of  damao^es  sustained  by  the  lessee,  from  the  leaky  condition  of 
the  building,  is  without  consideration  and  is  no  defense  to  an 
action  to  recover  the  rent.' 

The  honafide  compromise  of  a  disputed  claim  is  a  good  con- 
sideration for  a  "promise  ;  and  a  plea  that,  at  the  time  of  the  making 
thereof,  no  money  was  due  to  the  plaintiff  is  invalid."  The  claim 
must  be  doubtful  and  not  entirely  without  foundation ; '  but  the 
surrender  of  an  instrument,  wrongfully  obtained  and  held,  and 
which  a  court  of  equity  would  order  surrendered,  is  no  con- 
sideration for  a  promise.*  A  mere  agreement  to  forbear  prose- 
cuting a  suit  on  a  claim  which  is  clearly  invalid,  without  any 
compromise  of  the  alleged  claim,  is  without  consideration.  An 
agreement,  by  a  beneficiary  under  a  will,  to  pay  an  heir  a  certain 
sum  if  he  will  not  oppose  the  probate  of  the  will,  is  valid ; "  but 
it  must  be  averred  and  shown  that  there  was  some  ground  for 
opposing  the  probate  of  the  bill  or  some  doubt  as  to  its  validity. 
A  verbal  agreement,  for  the  sale  by  A  to  B  of  wheat  amounting 
to  over  $50,  none  of  the  wheat  being  delivered  and  no  part  of 
the  price  paid,  is  void  by  the  statute  of  frauds.  Such  a  void  con- 
tract is  not  a  sufficient  consideration  for  a  promise,  by  B  to  A,  for 
a  part  of  the  amount  claimed  by  A  as  damages  for  non-perform- 
ance of  the  contract.*  An  agreement  by  one  to  pay  a  joint  debt 
of  himself  and  another,  by  applying  thereon  a  note  held  by  him 
against  the  payee,  is  valid  if  based  on  a  good  consideration.  The 
creditor's  agreement  for  delay,  or  the  agreement  of  the  joint 
debtor  and  the  creditor,  furnishes  a  good  consideration.'  To  an 
action  on  a  covenant,  made  by  defendant  in  consideration  of  his 
daughter's  marriage,  the  defendant  pleaded  that  the  marriage  was 
null  and  void  by  reason  of  the  impotence  of  the  husband,  without 
stating  that  it  had  been  avoided  by  the  sentence  of  any  court,  or 

>  Walker  v.  Gilbert,  2  Rob.  214.  *  Croshp  v.  Wood,  6  N.  Y.  369. 

'  Callisher  v.  Bischoffsheim,  L.  R.,  5  *  Ootdd  v.  Armstrong,  2  Hall,  266. 

Q.   B    449  ;    Ockford    v.    Bnrreli,    20  «  Palmer  v.  North,  35  Barb.  282. 

Weekly  Rep.  116  ;  Bidirell  v.  Cotton,  '  Prater  v.  Miller,  25  Ala.  820 ;  Bushy 

Hob     216    but   see   Williams's  note ;  v.  Conoimy,  8  Md.  55. 

Sherman  v.   Barnard,  19  Barb.  302;  ^Hooker  v.  Knab,  2Q^\^.s.  f)l\;  8il- 

Gould  V.  Armstrong,  2  Hall,  266 ;  Yard-  vernail  v.  Cole,  12  Barb.  685  ;  Lawrence 

ley  V.  Ingram,  Hob.  219.  v.   Smith,    27   How.   327.      See,    also, 

3  Sherman  v.  Barnard,  19  Barb.  302  ;  Combs  v.  Baseman,  10  Barb.  573  ;  Van 

DoUher  v.  Fry,  37  id.  152  ;    City   of  Allen  v.  Jones,  10  Bosw.  309. 

Memphis  -v.  Broicn,  5  Am.  Law  Times,  *  Hawes  v.  Woolcoek,  26  Wis.  629. 
434,  U.  S.  Cir.  Ct.,  Western  Dist.  Tenn. 


CII.  YA.]  DEFENSES.  669 

tliat  either  of  the  parties  had  elected  to  treat  it  as  void ;  held,  a 
bad  plea.'  A  promise  by  one  to  pay  a  note  to  which  his  name 
was  forged  is  withont  consideration  and  invalid."  In  a  suit  on  a 
note  given  for  a  patent  right,  the  fact  that  after  the  date  of  the 
note  another  patent  was  issued  for  the  same  invention,  to  another 
patentee,  cannot  be  shown  under  an  answer  setting  up  a  want  of 
consideration.'  An  answer  of  entire  want  of  consideration  will 
fail,  if  it  appear  that  there  was  any  consideration  however  small.* 
A  partial  failure  of  consideration  must  be  pleaded,*  and  the  party 
pleading  a  failure  of  consideration  must  state  whether  it  is  a  partial 
or  a  total  failure." 

Disaffirmance.  —  If  a  vendee  obtains  property  by  fraud,  and 
then  transfers  it  to  another  without  consideration,  or  fraudulently, 
the  vendor  may  disafiirm  the  contract,  notify  the  possessor  thereof, 
demand  the  property  and  bring  suit,  without  offering  to  restore 
what  was  received  on  the  purchase  from  the  vendee,  especially  if 
the  purchaser  has  realized  from  the  use  of  the  property  more  than 
was  paid  on  account  of  the  purchase-money.*  But  if  a  fraudulent 
vendee  sell  to  several,  and  the  vendor  sue  the  vendee  for  the  entire 
purchase  price,  and  compromise  for  part,  he  cannot  afterward  pro- 
ceed against  one  of  the  purchasers  from  the  vendee,  although  in 
the  settlement  with  him  the  right  to  do  so  was  expressly  reserved/ 
A  party  who  desires  to  rescind,  on  account  of  fraud,  must  do  so 
promptly,  and  return  all  he  received  under  the  contract,'  although 
he  may  recover  damages  for  the  fraud  without  offering  to  rescind.* 
The  taking  of  any  benefit  under  the  contract  after  knowledge  of 
the  fraud,  or  changing  the  condition  of  the  property,  the  subject- 
matter  of  the  contract  is  a  ratification  of  it.'"  If  the  property 
received  is  capable  of  serving  any  purpose  of  advantage  to  the 
vendee,  or  if  the  loss  is  a  disadvantage  to  him  in  any  way  it  must 
be  returned." 

Divorce.  —  If  the  wife  co-habit  with  the  husband  for  several 

>  Gavill  V.  Prince,  L.  R.,  1  Exc.  246.    467  ;  Ely  v.  Mumford,  47  id.  632  ;  Roth 

*  McHugh  V.  Schuylkill  Co.,  5  Am.  v.  Palmer,  27  id.  652 ;  Campbell  v. 
Rep.  445,  67  Penn.  445.  Wright,  21  How.  9 ;  Bruce  v.  Daven- 

3  Crow  V.  Eichinger,  34  Ind.  65.  port,  3  Keves,  472,  5  Abb.  N.  S.  185; 

*  Eldridge  v.  Mather,  2  N.  T.  157.         Cohh  v.  Uatfield,  46  N.  Y.  533. 

6  Finch  V.  Pindon,  19  Abb.  97.  «  Ely  v.  3fumford,  47  Barb.  632. 

6  Pearse  v.  Pettis,  47  Barb.  276.  "»  Cobb  v.  Hatfield,  46  N.  Y.  533. 

'  Kinney  v.  Kiernan,  2  Lans.  492.  "  Bassett  v.  Brown,  105  Mass.  551. 
8  Central  Bank  v.  Binder,  46  Barb, 


670  DEFENSES.  [cn.  V  A. 

months  after  receiving  from  liim  cruel  and  inhuman  treatment, 
justifying  a  divorce  for  a  separation,  this  amounts  to  a  condona- 
tion and,  if  pleaded,  is  a  defense  unless  the  husband  be  subsequently 
guilty  of  improper  conduct.' 

Duress.  —  A  note  exacted  from  the  maker  while  under  arrest  for 
a  criminal  charge,  by  the  party  who  procured  his  arrest,  as  a  settle- 
ment of  claims  held  against  him,  is  void  in  the  hands  of  one  who 
obtained  it  with  knowledge  of  the  facts ;  and  this,  notwithstanding 
the  note  was  taken  in  settlement  of  a  civil  claim  for  damages  only 
and  without  compounding  the  criminal  charge,"  and  though  the 
full  amount  thereof  be  due.'  So,  terrifying  a  married  woman  into 
giving  a  note  by  duress  of  the  husband  renders  it  void ;  *  but,  in 
order  to  avoid  the  contract  on  the  ground  of  menace  of  arrest,  it 
must,  it  has  been  held  (we  think  not  in  accordance  with  the  cases 
just  cited)  that  it  must  be  of  a  lawful  imprisonment.*  A  note 
may  be  void  for  duress,  although  the  threats  were  made  several 
days  prior  to  the  giving  thereof,  if  the  threats  have  not  been  with- 
drawn.' An  emploj'er,  whose  business  requires  the  employment 
of  workmen,  m.&j  recover  back  money  he  was  induced  to  pay  in 
consequence  of  a  conspiracy,  and  threatening  to  induce  workmen 
to  leave  his  employment,  so  as  to  render  him  reasonably  appre- 
hensive that  he  cannot  carry  on  his  business  without  making  the 
payment.'' 

Easenieat.  —  An  easement  to  fish  in  a  tidal  river,  the  waters 
of  which  have  permanently  receded  from  one  channel  and  flow 
in  another,  cannot  be  followed  from  the  old  to  the  new  channel." 

Estoppel.*  —  The  facts  which  create  an  estoppel  must  be 
pleaded,  although,  if  proved  without  objection,  the  party  may  avail 
himself  of  the  defense ; "  merely  standing  by  without  remonstrance 
and  seeing  another  erect  a  wall  upon  one's  land  will  not  operate 
as  an  estoppel."  Where  the  owner  of  horses  to  be  carried  by  rail- 
way signed  a  statement  that  they  were  not  worth  to  exceed  ten 

'  Dnvies  v.  Davies,  55  Barb.  130.  ■"  Cnrero  v.  Rutherford,  106  Mass.  1. 

2  Osborne  v.  Bobbins,  4  Abb.  N.  S.  15,  *  Mayor  v.  Graham,  L.  R.  4  Excbeq. 

36  N.  Y.  3G5,  reversin<r  37  Barb.  481 ;  361. 

Chnndlor  v.  Johnson,  .39  Geo.  85.  "  The  subject  of  Estoppel  is  discus- 

"  Taylor  v.  Jacques,  106  Mass.  29.1.  sed  by  the  editor  of  the  present  edition 

'»  Eddie  v.  Shannon,  26  N.  Y.  9,  12 ;  in  a  note  to  Clarke's  Ch.,  p.  327,  new 

Decker  v.  Morton,  1  Redf.  Surr.  477.  edition. 

»  EnnpiJ  V.  Hyde,  60  Barb.  80.  '»  Brown  v.  Bowen,  31  N.  Y.  541. 

•  Taylor  v.  Jacques,  106  Masa.  291.  "  C hristianson  v.  Linford,Z^oh.2\5. 


en.  VA.]  DEFE]^SES.  671 

pounds  each.  They  were  injured.  Thej  were,  in  fact,  worth 
more  than  ten  pounds  each.  In  a  suit  against  the  company  for  the 
vahie  of  the  horses,  held,  that  the  phiintifF  was  estopped  from 
claiming  they  were  worth  more  than  ten  pounds  each.* 

Executor.  —  It  has  been  held  that  if  an  administrator  be 
ap}X)inted  and  he  sell  property  of  the  deceased,  after  notice  of  the 
existence  of  a  will,  he  will  be  liable  in  an  action  of  trover  to  the 
executor  for  the  full  value  of  the  property  sold,  and  cannot  show 
in  mitigation  that  he  had  administered  the  assets  to  that  amount ; ' 
and  so,  where  administration  was  granted  upon  concealment  of  a 
will  and  is  revoked  after  discovery  of  the  will,  mesne  acts  and  sales 
by  the  administrator  are  void ;  ^  but  if  the  administrator  act  in 
good  faith  he  would  undoubtedly  be  protected ;  *  and  third  persons 
v.'ould  undoubtedly  be  whether  he  acted  bona  fide  or  not ;  ^  but 
the  widow  who  acts  as  executrix  de  son  tort  cannot  give  good 
title  to  the  property  of  her  deceased  husband." 

Exempt  property.  —  Where  a  sheriff  or  constable  is  sued  for 
selling  exempt  property,  and  he  desire  to  justify,  on  the  ground 
that  the  judgment  was  recovered  for  exempt  property,  and  there- 
fore he  had  a  righ.t  to  sell  such  property  on  the  execution,  ne 
must  plead  the  judgment,  when  he  will  be  allowed  to  prove  the 
consideration  thereof^  Otherwise  where  the  officer  does  not  claim 
to  sell  exempt  property.  He  is  then  only  required  to  plead  the 
execution.*  On  proving  the  number  of  the  debtor's  family,  the 
quantit}^  of  vegetables  and  other  provisions  he  had  on  hand,  and 
that  they  were  actually  provided  for  family  use,  it  is  a  question 
for  the  jury  whether  they  were  necessary  and  were  provided  for 
such  use.  The  fact  that  the  debtor  is  on  the  way  to  exchange 
exempt  provisions  for  articles  of  prime  necessity,  or  to  raise  money 
to  pay  his  taxes,  does  not  depiive  him  of  his  right  to  insist  that 
such  vegetables  were,  in  tact,  exempt.' 

'  McCance  v.  London,  etc.,  3  Hurl.  ^  Allen  v.  Priestman,  3  T.  R.  125,  3 

&  Colt.  343.  Redf.  on  Wills  (2d  ed.).  120. 

2  Woolei)  V.  Clark,  5   Barn.  &   Aid.  ^  Mountford  y.  IIoUnnd,AY.a.st. '^l. 

744,  1  Dowl.  &  Ryl.  439.  '  Dennis  v.  Snell,  34  How.  467,  50 

^  Al)raJiamv.Coniinqham,,¥reexa^xi's  Barb.  Oo  ;  again  reported,  by  mistake, 

K.  B.  445,  2  Lev. '182;  but  see  Wal-  54  id.  411. 

lacp's  Reporters,  pp.  242-3,  1  Showers,  ^  Werner  v.  Waters,  55  Barb.  591 

410,  Bacon's  Abr.,  title  Executors,  E.  13,  Shaw,  v.  Davis,  55  id.  389. 

•»3    Redf.    on    Wills  (2d    ed.),  120.  »  6Via?c  v.  Z>ayw,  55  Barb.  889. 
Bacon's  Abr.,  title   Executors,  E.  13; 
Bigelow'ii  Exr.  v.  Bigelow,  4  Ohio,  147. 


672  DErE]^SES.  [CH.  VA. 

Extension  of  time.  —  If  a  creditor  accept  the  payment  of 
interest  in  advance,  on  a  demand  already  due,  and  agree  to  extend 
the  time  of  payment,  the  agreement  is  valid.*  But  a  promise  by 
the  debtor  that  he  will  not  pay  the  debt  until  a  future  day  named, 
and  will  then  pay  the  same  with  interest,  is  not  a  good  consider- 
ation for  an  agreement  by  the  creditor  to  extend  the  time  of 
payment ;  *  nor  is  the  payment  of  part  of  the  amount  due  a  good 
consideration  for  an  agreement  to  extend  the  time  for  the  paj^raent 
of  the  balance.' 

Forgery.  —  The  defense,  that  a  forgery  was  committed  by  filling 
up  a  check  or  note  for  more  than  it  was  originally  given  for,  is  not 
available  to  a  maker  who  negligently  left  a  blank  between  the 
words  indicating  the  amount  and  the  word  "  dollars."  *  So  as  to 
one  who  signs  a  paper  partly  written  with  a  pencil,  so  that  a  por- 
tion of  it  can  be  erased." 

Former  suit.  —  The  dismissal  of  a  cause  on  account  of  defect 
of  parties,  or  before  the  verdict  of  a  jury,  is  no  bar  to  another 
action  for  the  same  cause."  So  a  verdict  on  the  ground  that 
the  cause  of  action  was  not  due  at  the  commencement  of  the 
action.'  Otherwise  if  the  cause  of  action  were  then,  in  fact,  due, 
although  the  verdict  was  erroneously  rendered  upon  that  ground.* 
A  dismissal  on  the  merits  is  a  bar,'  though  without  prejudice.^  It 
has  been  recently  held  in  England,  in  the  exchequer  chamber, 
\h.2Li  judgment  recovered  against  one  of  several  wrong-doers,  with- 
out satisfaction,  was  a  bar  to  an  action  against  the  others  ;  "  but  in 
most  of  the  States  the  recovery  of  a  judgment  would  not  be  a  bar 
without  payment  or  satisfaction  thereof,"  and  even  then  it  is  no 
bar  if  the  qause  of  action  was  such,  in  its  nature,  that  it  could 

'  Wakefield  Bank  v.  Truesdeu,  55  '  Quackeribtish  v.  Ehle,  5  Barb.  469 ; 
Barb.  G02.  Wilcox  v.  Lee,  26  How.  418,  1  Abb. 

*  KeUofjg  V.  Olmnted,  25  N.  Y.  189.     N.  S.  250,  1  Rob.  355. 

See  Ilalliday  v.  Hart,  30  id.  474.  «  Morgan  v.  Plumb,  9  Wend.  287. 

3  Ilalliday  v.  Hart,  30  N.  Y.  474.  »  Bostvnck  v.  Abbott.  40  Barb.  331,  16 

*  Gerrard  v.  Haddan,  5  Am.  Rep.     Abb.  417. 

412,  07  Penn.  82;  but  see  Societc-Gen-  '"  Brinsmead  v.  Harrison,  dEng.  "Rep. 

eral  v.  Metropolitan  Bank,  21  Weekly  383,  and  see  note,  p.  390. 

Rep.  335.  "  Bexter  v.  Broat,  16  Barb.  337  ;  Wies 

*  Harvey  v.  Smith,  55  111.  224.  v.  Fanning,  9  How.  546  ;  Livingston  v. 

*  Wheeler  v.  Ruckman,  35  How.  350,  Bishop,  1  Johns.  290 ;  Kasson  v.  People, 
7  Rob.  447;  Audubon  v.  Excelsior,  etc.,  44  Barb.  347;  3  Eng.  Rep.  390,  note, 
27  N.  Y.  216  ;  Coit  v.  Beard,  33  Barb,  where  the  cases  are  collected. 

?57 ;  Dexter  V.  Clark,  35  id.  271,  22 
How.  289. 


on.  V  A.] 


DEFENSES.  "'^ 


Wally  exist  against  only  one  person,  and  that  person  be  tlie  de- 
lendant  in  the  second  suit/     And  so  a  recovery  agams   a  firm, 
for  soods  sold,  is  no  bar  to  an  action  against  one  ot  them  for 
frand^     If  one  of  several  wrong-doers  pay  part  ol  the  damages 
with  or  without  suit,  such  payment,  in  a  suit  against  another  of 
them  may  be  deducted  from  the  damages,'  unless  it  were  received 
in  full  satisfaction  of  the  injury,  and  the  party  payhig  were  re- 
leased, when  it  would  be  a  bar  ;  for  a  release  of  one  joint  wrong- 
doer is  a  satisfaction  as  against  all/     If  judgment  be  recovered 
against  one  wrong-doer,  and  he  be  imprisoned  on  execution  and 
c^scharged  by  consent  of  the  creditor,  it  is  a  satisfaction  as  to  all. 
In  an  action  of  trespass,  guare  clausum,  where  the  taking  ot  per- 
sonal property  is  alleged  by  way  of  aggravation,  a  recovery  and 
payment  thereof  vests  title  to  the  personal  property  in  the  defend- 
ant"    If  a  suit  be  commenced  by  one  partner  for  an  accoun  mg 
and  settlement,  a  suit  will  not  lie  for  the  same  purpose  by  the  other, 
although  he  ask  extended  relief.'     An  attorney  who  prosecutes  a 
suit  on  a  note,  in  the  name  of  another,  is  not  estopped  m  a  suit 
thereon,  in  his  own  name,  by  a  judgment  in  the  formei-action.    His 
acts  in  that  are  simply  evidence  upon  the  Ciuestion  ol  his  owner- 
ship ^    In  a  suit  in  one  court  for  damages  on  account  of  a  fraudulent 
warranty,  the  court  will  not  compel  the  defendant  to  discontinue  a 
suit  by  him  in  another  court  for  part  of  the  unpaid  purchase- 
money  or  stay  proceedings  therein.'    A  recovery  for  one  cause 
of  action  will  not  bar  the  other.'     Otherwise  if  the  causes^  of 
action  or  defenses  be  identical'"    Nor  will  a  judgment  agamst 
one  for  a  continuing  nuisance  bind  him,  if  he  have  transterred 
the    property    without    warranty,    as   to    the   nuisance    or    any 
interest  in  its  continuance."     It  has  recently  been  held  m  Ver- 
mont,'^ substantially  disapproving  of  a  couple  ot  cases  in  New 
York,''  that  a  surety  who  has  notice  of  a  suit  is  prima  facie 

^  Morgan  v.  Skidmore,  55  Barb   263,.  ^^^^  v.  ^^^'  ^  ^^^  409. 

affirmed    by    court  of   appeals,  Nov.,  \\'Sd\smit7i,7Tioh.-S06. 

C^ckei'^  Abb!  N    S.  335.  Jacfcson  v.  Gnswold.  4  Hill,  52.. 

»  Kasson  v.  People,  44  Barb.  347. 

85 


674  DEFENSES.  [CH.  V  A. 

bound  by  an  adjudication  against  or  in  favor  of  tlie  principal 
debtor,  and  that  the  same  rule  applies  to  joint  and  several  con- 
tractors. 

Fraud.  —  It  is  no  defense,  in  an  action  on  an  undertaking, 
given  in  discharge  of  an  attachment,  that  the  defendant  was 
induced  to  execute  it  through  the  fraud  of  the  party  against  whom 
the  attachment  was  issued,  if  the  plaintiff  was  ignorant  of  any 
false  or  fraudulent  representations  by  such  party/  Fraud  must 
be  pleaded  as  a  defense.  Under  plea  that  the  goods  were  not  the 
plaintiff' 's,  defendant  cannot  show  that  the  sale  to  the  plaintiff 
was  fraudulent.^ 

Frauds,  statute  of.  —  It  has  been  held  that  where  a  tenant 
verbally  agreed  to  hire  lands  for  fourteen  years,  and  was,  by  the 
terms  of  the  lease,  to  have  the  crops  then  growing  on  the  premises, 
which  he  cut  and  removed,  the  contract  being  void  by  the  statute 
of  frauds,  the  landlord  could  not  recover  therefor.'  Plaintiff  had 
contracted  to  supply  goods  to  C,  to  be  paid  for  on  delivery.  C 
desiring  credit,  defendant  (who  had  an  interest  in  the  performance 
of  the  work  upon  which  the  goods  were  to  be  used)  promised  the 
plaintiff'  if  he  would  supply  the  goods  to  C  on  a  month's  credit, 
and  would  allow  defendant  three  per  cent  upon  the  invoice,  he 
would  pay  him  cash  and  take  C's  bill  without  recourse.  Held, 
within  the  statute."  When  the  pleading  alleges  an  agreement 
which  would  be  within  the  statute,  unless  in  writing,  it  will  be 
presumed  to  be  a  written  agreement,  and,  if  denied,  such  an  one 
must  be  proved.*  An  agreement,  to  employ  a  person  for  one  year, 
to  commence  in  the  future,  is  void,  unless  in  writing,  and  the 
statute  need  not  be  pleaded  aihrmatively  if  the  agreement  be 
denied.'  But  if  A  hire  B  for  one  year,  and  he  works  that,  and 
then  continue  on  the  next  without  any  new  contract,  the  jury  may 
find  an  agreement  to  employ  B  for  another  year,  and  as  the  new 

•  Coleman  v.  Bean,  3  Keyes,  94,  97,  VavgJm  v.  Hancock,  3  Com.  B.  76G,  54 

32  How.  370,  381.      The  head  note  in  Eng.  C.  L. 

How,  misstates  the  facta ;  the  fraud  was  *  Mallett  v.  Batsman,  16  C.  B.  N.  S. 

not  claimed  to  have  been  committed  530,111  Eng.  C.  L.;  Brown  v.  Wcher, 

by  the  plaintiff's  agent,  but  by   the  24  How.  306,  affirmed,  38  N.  Y.  187; 

defendants  in  the  attachment  suit.  Mavley  v.  Gragen,  105  Mass.  445. 

"^  Howell  V.   White,  1  Mood.  &  Rob.  ^  Limngston  v.  Smith,  14  How.  490 ; 

400.  Johns  V.  Norris,  22  N.  J.  Eq.  109. 

^  Earl    of  Falmouth  v.  Thomas,  1  ^  Amhurger  v.  Marvin,  ^'Ei.  J),  ^miih. 

Cromp.  &    Mees.  89,  3    Tyrwh.    26;  393. 


CH.  V  A.]  DErE]!iSES.  675 

year  cannot  commence  until  the  expiration  of  the  old  the  statute 
does  not  apply/  It  is  not  sufficient  to  take  the  case  out  of  the 
statute  that  goods  sold  be  delivered  by  the  seller ;  the  purchaser 
must  acce]j)t  them.' 

Qift.' —  A  gift  from  husband  to  wife  is  not  good,  as  against  the 
creditors  of  the  husband,  if  the  wife  immediately  return  it  with 
instructions  to  use  it  as  her  agent.  To  render  a  gift  valid  there 
must  be  a  positive  change  of  possession,  so  the  donor  is  in  no 
position  to  repossess  himself  of  the  subject-matter  of  the  gift  or 
to  re-call  it/ 

Guardian's  lease.  —  The  lease  of  a  guardian  in  socage  is  only 
good  so  long  as  his  guardianship  continues.  On  the  appointment 
of  a  new  guardian  he  may  elect  to  terminate  the  tenancy." 

Guaranty.  —  A  guaranty  to  secure  moneys  advanced  within 
twelve  months  is  countermand  able  ;  *  but  a  continuing  guaranty 
binds  the  executor  of  the  guarantor  for  goods  sold  after  his  death.* 

Illegal  contract.  —  A  contract  by  a  liveryman  to  let  a  horse 
tor  pleasure,  on  Sunday,  is  illegal  and  void ;  *  but  if  the  hirer 
willfully  injure  the  horse  he  is  liable."  So  an  agreement  by  the 
lessee  of  a  hotel  to  lease  the  bar  of  the  hotel  to  another  and  to 
sell  to  him  a  right  to  sell  liquors  under  the  lessee's  license  is  illegal 
and  void."  An  agreement  by  an  attorney  to  carry  on  a  law  suit 
and  pay  the  expenses  thereof  is  not,  since  the  Code,  illegal ;"  nor  is 
an  agreement  to  sell  and  deliver  goods  at  the  buyer's  option,  of 
which  the  seller  is  not  the  owner,  necessarily  so ; "  an  agreement 
by  one  of  two  rival  lines  of  railroads  not  to  extend  its  line  beyond 
a  certain  point  is  illegal ; "  one  who  sells  goods  to  a  native  of 
another  country  may  recover  the  price  in  the  forum  of  the  vendee, 
although  he  (the  seller)  knew  the  vendee  intended  to  smuggle 
them  into  his  own  country.'*     When  two  parties  carry  on  a  part- 

1  Tatterson  v.  Suffolk,  106  Mass.  56.  '  Bradbury  v.  Morgan,  1  Hurl.  &  Colt. 

'  Stone  V.  Browning,  44  How.  131,  249. 

Commission  of  Appeals.  *  Nodine  v.  Doherty,  46  Barb.  59,  5 

3  Upon    the    subject    of    gifts,   see  Am.  Law  Reg.  N.  S.  346,  and  note. 

Moak's  note  to  Clarke's  Ch.  217,  new  »  Nodine  v.  Doherty,  46  Barb.  59,  5 

edition.     Beak  v.  Beak,  2  Eng.  R.  390,  Am.  Law  Reg.  N.  S.  346.    See  Leopard, 

893,  note.  Davies'  U.  S.  Cir.  Ct.  193. 

^  Little  V.  Willetts,  55  Barb.  125.  i"  Sanderson  v.  Goodric?i,i6  Barb.  616. 

»  Emerson  v.  Spieer,  55  Barb.  428,  "  Fogerty  v.  Jordan,  2  Rob.  319. 

88  How.  114.  '*  Mcllvane  v.  Edgerton,  2  Rob.  422. 

«  Oford  V.  Davies,  12  C.  B.  N.  S.  748,  '^  Hartford,  etc.,  v.  Nm  Fork,  etc.,  8 

104  Eng.  C.  L. ;  Bnrge.^s  v.  Ece,  2  Eng.  Rob.  411. 

liep.  bT9,  L.  R.,  13  Eq.  Cas.  450.  "  Pellecat  v.  Angdl,  2  Cromp.,  Meea 


676  DEFENSES.  [CH.  VA. 

nership  in  a  manner  prohibited  by  law,  neither  can  recover  against 
the  other;  *  and,  so,  one  who  is  required  to  have  a  license  to  sell, 
and  sells  without  one,  cannot  recover  for  goods  sold ; "  neither 
can  a  peddler,  who  is  required  to  have  a  license,  recover  for  his 
own  services  rendered  in  peddling  while  he  had  none.'  It  is  not 
unlawful  for  members  of  a  trades  union  to  agree  that  thej  will 
not  work  below  a  certain  price ;  but  any  unlawful  combination  to 
compel  a  workman  who  works  below  certain  wages  or  for  a  person 
who  is  not  approved  by  the  society  to  quit  is.*  It  is  not  necessarily 
illegal  for  the  owner  of  the  art  of  preparing  a  secret  medicine  to 
sell  the  secret,  and  agree  that  the  vendee  may  sell  the  preparation 
with  the  vendor's  name  upon  the  labels.' 

Impossilbility.  —  In  order  to  discharge  a  party  from  liability, 
it  must  be  impossible  to  perform ;  it  is  not  sufficient  that  it  is 
difficult  or  expensive  to  do  so  ;*  so  it  is  no  defense  to  a  railroad 
in  an  action  for  not  transporting  goods,  that  a  large  number  of 
its  hands  suddenly  and  wrongfully  struck  and  refused  to  work,* 
nor  that  after  the  contract  a  statute  was  passed  making  perform- 
ance more  burdensome  ;*  nor  does  accident  or  unforeseen  occur- 
rence excuse  performance ;'  when  the  party  is  prevented  by  the 
act  of  God  he  is  excused.'" 

Iiifaucy.  —  The  contract  of  an  infant  is  voidable  and  not  void. 
If  an  infant  assume  and  agree  to  pay  a  mortgage ;  while  still  an 
infant  sell  it,  and  after  majority,  on  being  made  a  party  to  a  fore- 
closure, does  not  interpose  the  defense  ;  held,  when  sued  for  the 
deficiency,  she  was  not  liable,  as  she  had  done  no  act  of  affirm- 

&   Rose.  311  ;    Backman  v.  Jenks,  55  Daly,  1,  stating  the  rules  which  govern 

Barb.  468 ;  Bowers  v.  Bradley,  9  Abb.  trades  unions. 

N.  S.  395.  ^  Hard  v.  Seeley,  47  Barb.  428,  see  1 

'  Armstrong  v.  Lewis,  2  Cromp.  &  Bouv.  Inst.  1,  §  774. 

Mees.  274.  *  Jervis  v.    Tomkinson,  1    Hurl.  & 

«  Best  V.  Bauder.  29  How.  489.    See  Norm.  195. 

Williams's  note  to  Rex  v.  Kelderhy,  1  '  Blackstock  v.  New  York,  etc.,  20  N. 

Saund.  309  b  (ed.  184G),  1  WilUams's  T.  49,  1  Bosw.  77. 

note  to  Saund.  515,  ed.  1871.  ^  Baker  v.  Johnson,  42  N.  T.  126. 

3  Stewartson  v.  Lothrop,  12  Gray,  52 ;  «  Tompkins  v.  Dudley,  25  N.  Y.  275  ; 

but,  see  Woodward  v.  Stearns,  10  Abb.  Harmony  v.  Bingham,  12  id.  99  ;   Van 

N.  S.  395,  41  Vt.  655 ;  Cope  v.  Rowlands,  Buskirk  v.  Robe-rts,  31  id.  G~5  ;  Chase 

2  M.  &  W.  149,  159,  and  Ferguson  v.  v.    Hatch,  4    Rob.     90  ;     Jenkins    v. 

Norman,  2  Scott,  794,  are  directly  con-  Wheeler,  3  Keyes,  656  ;  Cobb  v.  Har- 

trary  to  Woodward  v.  Stearns,  supra  ;  mon,  23  N.  T.  148  ;  but  see  Hyland  v, 

Bo.  also,  is  Taylor  v.  Crowland,  etc.,  10  Paul,  33  Barb.  241. 

Excheq.  297.  '"  Harmony  v.  Bingham,  12  N.  Y.  99. 

*  Master  Stevedores,  etc.,  v.  Walsh,  2 


OH.  VA.]  DEFENSES.  677 

aiice ;'  otherwise,  wlien,  after  majority,  the  infant  retains  the 
property  he  procured  by  the  contract.' 

Insurance.  —  Where,  on  obtaining  an  insurance,  the  assured 
answered  that  "  no  steam  engine  evijployed  on  the  premises ; 
the  boiler  being  used  for  heating  water  and  warming  the  shops ;" 
and  it  was  further  provided,  that  in  case  the  risk  was  increased 
the  policy  should  be  void,  it  was  held  that  a  subsequent  erection 
of  a  steam  engine  to  connect  with  the  boiler  did  not  avoid  the 
policy  if  the  risk  was  not  increased.^  A  by-law,  that  a  suit  upon 
a  policy  shall  be  brought  in  a  particular  county  is  not  binding  on 
the  assured  ;*  so  a  clause  in  a  policy,  that  suit  shall  only  be 
brought  in  courts  of  the  State  incorporating  the  company ;  * 
although,  one  that  the  action  shall  be  brought  within  one  year,  or 
the  insurer  shall  be  no  longer  liable,  is  valid ;'  slight  evidence  of 
waiver  of  such  a  clause  will  be  sufficient.''  If  the  clause  be,  that 
the  amount  to  be  paid  shall  be  detennined  by  directors,  and  if 
the  assured  be  dissatisfied,  he  shall  bring  suit  within  four  months, 
it  does  not  bar  a  suit  after  four  months  to  recover  the  amount  fixed 
by  the  directors.®  The  time  limited  does  not  commence  to  run 
until  the  assured  has  a  right  to  sue,  notwithstanding  the  clause 
be  that  the  suit  shall  be  commenced  within  that  time  "  after  the 
loss  accrue,"  for  this  clause  is  to  be  read  in  connection  with  the 
other  conditions  of  the  policy.' 

Justification.  —  If  an  officer  have  two  processes  againt  jprojp- 
erty^  one  of  which  is  legal,  and  the  other  illegal,  when  sued  for 
an  act  done,  he  may  justify  under  that  which  is  valid.'"  If  the 
officer,  in  fact,  had  the  process  in  his  hands  at  the  time,  he  may 
justify,  although  he  declared  he  entered  for  anotlier  purpose." 

'  Flynn  v.  Poicers,  43  N.  Y.  26,  re-  '  Ripley  v.  Astor,  17  How.  444,  29 

versing  54  Barb.  550,  30  How.  289,  and  Barb.  553,  the  reversal  of  this  case  ia 

35   id.   279,   special    term ;    Irvine    v.  30  N.  Y.  13(>,  does  not  seem  to  conflict 

Irvine,  9  Wall.  G18.  with  this  proposition. 

^  Henry  v.    E(Mt,    33    N.   Y.    526;  »  Ainesbury  v.BowditcJi,  etc.G  QTny, 

Irvine  v.  Irvine,  9  Wall.  618.  596. 

3  Stokes  V.  Cox,  1  Hurl.  &  Norm.  533.  »  Mayor,  etc.,  v.  Hamilton  Fire  Ins, 

4  Nute  V.  Hamilton  Ins.  Co.,  6  Gray,  Co.,  39  N.  Y.  45, 10  Bosw.  537. 

174 ;  IMl  V.  People's  Mutual  Ins.  Co.,  '"  Houghton  v.   Bachman,  47  Barb. 

6  id.  185.  388 ;    Hays  v.    Drake,  6   Gray,    387  • 

*  llcichard  v.  Manhattan,  etc.,  1  Law  Hooper  v.  Lane,  6  H.  L.  Cas.  443.     See 

Reg.  N.  S.  547, 31  Mo.  518.  Peck  v.  Tiffany,  2  N.  Y.  451. 

«  Ripley  v.  ^tna  Ins.  Co.,  30  N.  Y.  "  Crowthers  v.  Ramsbottom,  7  T.  R. 

136;  Roach  v.  New  York,  etc.,  id.  546;  654. 
Hemmes  v.  Hartford,  etc. ,  13  Wal  L  158. 


678  DEFEI^SES.  [CH.  VA. 

In  cases  of  process  against  the  person,  if  an  officer  arrest  the  party 
upon  one  which  is  void  alone  he  cannot  afterward  justify  the 
arrest  under  a  good  one.'  And  if  a  party  be  arrested  under  a 
void  process,  the  officer  cannot  detain  him  under  a  legal  one.' 
Where  the  officer  would  justify  under  two  processes,  he  must 
plead  both,  as  evidence  is  not  admissible  of  a  justification  not 
pleaded.' 

Libel.  —  It  is  no  justification  that  the  libelous  matter  was  pre- 
viously published  by  a  third  person,  that  the  defendant  at  the 
time  of  his  publication  disclosed  the  name  of  that  person,  and 
believed  the  statements  contained  in  the  libel  to  be  true.*  But 
under  the  Code  such  matter  could  clearly  be  set  up  in  mitigation.' 
It  is  a  good  defense  to  an  action  for  libel  that  the  defendant  was 
a  superior  military  officer,  and  the  libel  complained  of  was  a 
report  in  regard  to  certain  letters  of  the  plaintiff  to  the  com- 
mander-in-chief, even  though  the  defendant  was  actuated  by 
malice.'  It  is  not  a  good  plea  to  say  that  the  defamatory  matter 
was  and  is  true  in  substance  and  in  fact.  The  court,  on  motion, 
will  compel  the  party  to  make  the  answer  definite  and  certain  by 
pleading  the  facts  and  matters  relied  on.'' 

Where  the  parties  were  jointly  interested  in  certain  real  estate, 
and  defendant  wrote  a  letter  about  the  property,  complaining  of 
defendant's  conduct  in  relation  thereto,  and  also  relative  to  his 
conduct  to  his  mother  and  his  aunt,  it  was  held  that  the  latter 
portion  was  not  privileged.*  In  an  action  for  libel,  it  is  a  good 
plea  that,  after  the  commencement  of  a  suit,  the  plaintiff  and 
defendant  agreed  to  accept  the  publication  of  mutual  apologies  in 
satisfaction  of  the  causes  of  action,  damages  and  costs,  and  that 
6uch  apologies  were  published. °  Where  a  police  officer  neglects 
to  report  a  gratuity  received  by  him,  the  editor  of  a  paper  is  not 
justified  in  stigmatizing  it  as  a  "  blackmailing"  operation.'"  It  is 
no  defense  that  an  article  contains  a  correct  narrative  of  what 
occurred  if  it  contain  unwarranted  deductions  from  such  facts 

'  Hooper  v.  Lane,  6  H.  L.  Cas.  443 ;  ^  Mnretzek  v.  Cauldioell,  5  Rob.  660. 

Percival  v.  Stamp,  9  Excheq.  167.  *  Dawlcins  v.  Pawlet,  L.  R.,  5  Q.  B.  1)4. 

'■^  Egginton's  Case,  2  Ell.  &  Bl.  717,  '  Jones  v.  Beidcke,  L.  R.,  5  C.  P.  33 

730,   75    Eng.    C.    L.  ;    Humphrey   v.  Maretzek  v.  Cnuldwell,  5  Rob.  660. 

Mitchell,  3  Bing.  (N.C.)  619, 39  Eug.C.  L.  » Warren  v.  Warren,  1  Cromp.,  Mees 

See  Addison  on  Torts  (3d.  ed.),  638-9.  &  Rose.  350. 

^  Graham  v.  Harrower,  18  How.  144.  *  Boosey  v.  Wood,  3  Hurl.  &  Colt.  484 

*  Tidman  v.  Ainslie,  10  Exclieq.  63.  '"  Edsall  v.  Brooks,  2  Rob.  39. 


OH.  VA.l  DEFENSES.  679 

defaming  the  plaintiff.'  When  a  defendant  seeks  to  mitigate 
damages  by  showing  good  faith,  he  must  plead  the  facts  and  cir- 
cmnstaDces  which  induced  him  to  believe  the  truth  of  the  charge, 
and  they  must  be  such  as  would  authorize  a  person  of  ordinary 
intelligence  and  knowledge  to  believe  the  truth  of  the  charge." 
It  should  also  show  that  defendant  knew  such  facts  and  circum- 
stances, and  that  he  believed  them  to  be  true,"  and  unless  it  do 
this  the  allegations  will  be  stricken  out."  In  pleading  that  de- 
fendant uttered  the  words  in  the  heat  of  passion,  defendant  must 
plead  the  acts  and  circumstances  which  he  claims  caused  his 
passion,'  and  so  if  he  claim  that  plaintiff's  former  conduct  was 
calculated  to  produce  that  effect.*  A  letter  written  by  an  attorney 
to  the  next  friend  of  his  client,  advising  the  next  friend  not  to 
change  his  attorney,  and  giving  as  a  reason  plaintifl^'s  unfaithful- 
ness to  a  former  employer,  is  privileged.* 

License.  —  A  parol  license  to  enter  upon  lands  of  another 
and  erect  a  dam  is  invalid,  and  may  be  revoked  at  any  time ;  *  nor 
will  a  license  to  one  to  insert  the  beams  of  his  building:  in  the 
wall  of  the  licensor  prevent  his  tearing  down  the  wall.''  The 
habitual  use  of  a  foot-path,  without  objection,  warrants  the  find- 
ing of  a  license.*  A  license  to  enter  the  house  of  another  must 
be  pleaded,'  and  so  a  license  to  enter  and  demand  a  debt  due  the 
defendant  from  the  plaintiff,'" 

Lieu.  —  One  who  raises  or  destroys  a  sunken  vessel  has  no 
lien  upon  the  cargo,  if  it  do  not  belong  to  the  owner  of  the  ves- 
sel, for  the  expenses  of  so  doing."  One  who  receives  in  pledge 
money  collected  by  the  pledgor  for  another  cannot,  against  the 
owner,  hold  it,  if  he  receive  it  under  circumstances  showing  knowl- 
edge of,  or  a  reasonable  ground  of  suspicion  as  to  the  tacts.'" 

Limitations^  statute  of.  —  The  short  statute  of  limitations,  in 
favor  of  executors  and  administrators,    only  applies   to   claims 

•  Edsall  V.  Brooks,  2  Rob.  29  ;  S.  C,  '  Roberts  v.  Wliite,  2  Rob.  425. 

3  id.  284.  8  Driscoll  v.  Roserulale,  :;7  N.  Y.  637 

-  Dolevin,  v.  Wilder,  7  Rob.  319.  Martin  v.  HouglUon,  1  Abb.  N.  S.  339 

^  Dulevin  v.    Wilder,    1    Rob.    319;  31  How.  82. 

Monster  v.  Harding,  5  Am.  Rep.  195  ;  '  Ilaight  v.  Badgeky,  15  Barb.  499. 

33  Ind.  176.  '"  Vanbusldrk  v.  Ircing.  T  (  ow..35. 

••  Dolevin  v.  Wilder,  7  Rob.  319.  "  Vivian  v.  Mersey  Docks,  L.  R.,  5  C, 

^Wright  v. Woodgate, 2  Crom-p.,Mees.  P.  19. 

&  Rose.  573.  "  Haynes    v,    Foster,    3    Cromp.   & 

^  Bdbcock  V.  Utter,  1  Keves,  115,  id.  Mees.  ReiJ.  237. 
397 ;  Roberts  v.  Rose,  3  Kuri.  &  Colt.  1G2. 


680  DEFENSES.  [CH.  V  A. 

which  are  presented  and  rejected  after  the  publication  of  notice 
requiring  such  presentation  pursuant  to  an  order  of  the  surrogate, 
and  the  proper  publication  of  a  legal  notice  therefor ;'  and  they 
must,  themselves,  pass  upon  and  reject  the  claim;*  but  the 
executor  may  designate  any  place  he  pleases  as  his  residence  at 
which  the  presentation  is  to  be  made.'  An  unqualified  rejection 
is  sufficient,  although  a  desire  for  a  bill  of  particulars  be  expressed,* 
but  a  continuance  of  negotiations  is  not/  In  an  action  by  an 
assignee,  when  a  set-ofi"  against  the  assignor  is  pleaded,  the 
assignee  may  avail  himself  of  the  statute  of  limitations  and  this 
without  replying  it."  The  statute  of  limitations  of  another  State 
is  no  defense,  if  the  claim  be  not  barred  by  the  law  of  the  forum.'' 
The  presumption  of  payment  created  by  the  Revised  Statutes 
can  be  properly  raised  by  a  plea  of  payment,' 

If  the  mortgagor  make  a  payment  upon  the  mortgage  before 
it  is  barred  by  the  statute,  such  payment  prevents  the  running  of 
the  statute,  even  as  against  the  owner  of  the  equity  of  redemp- 
tion, who  is  not  a  party  to  the  payment,  and  the  mortgage  wiU 
not  be  barred  until  twenty  years  from  the  last  payment."  Where 
a  note  is  payable  in  installments,  according  to  assessments  by 
the  directors  of  a  corporation,  the  statute  does  not  begin  to 
run  until  an  assessment  and  notice  thereof ;'°  although  if  the  note 
were  an  original  note  made  for  and  used  as  a  part  of  the  capital 
of  an  insurance  company,  it  is  payable  on  demand  without  assess- 
ment, and  the  statute  runs  from  its  date."  Where  the  note  of 
a  third  person  is  taken  as  security  for  a  debt  the  statute  does  not 
commence  to  run  on  the  debt  until  the  note  is  due,'*  Where  an 
account  is  settled  the  statute  runs  from  that  time ;"  although  poverty 
is  no  excuse  for  delay  if  the  statute  have  not  actually  attached  the 
embarrassments  of  the  plaintiff  occasioned  by  the  acts  of  the 

'  Hardy  v.   Ames,    47    Barb.    413 ;  *  Mw  York,  etc.,  v.  Covert,  6  Abb. 

Murray  v.  Smith,  9  Bosw.  689.  N.  S.  154. 

»  Hardy   v.   Ames,   47    Barb.    413 ;  ^  New  Torh,  etc.,  v.  Covert,  6  Abb. 

Murray  v.  Smith,  9  Bosw.  689.  N.  S.  154,  reversing  29  Barb.  435. 

• »  Uoyt  V.  Boimctt,  58  Barb.  529,  dis-  '»  Hope  Mutual  Ins.  Co.  v.  Taylor,  3 

approving  Murray  v.  Smith,  9  Bosw.  Rob.  279 ;  Howland  -v.  Cuykendall,  40 

689,  upon  this  point.  Barb.  320. 

4  Hoyt  V.  Bonnett,  58  3arb.  529.  "  Howland  v.   Edmunds,  24   N.    Y. 

'"  Calannn  v.  McClure,  47  Barb.  206.  307. 

»  Thompson  v.  Sickles,  46  Barb.  49.  ''^  Fowler  v.  Clearwater,  35  Barb.  143. 

'  Toalindoa  v.  Lachenmeyer,  37  How.  "  Ex  parte  Storer,  Davies's  U.  S.  Cir. 

14"),  6  Abb.  N.  S.  215 ;  Power  v.  Hatha-  Rep.  295. 
way,  43  Barb.  214. 


CH.  VA.]  DEFENSES.  681 

defendant  are  a  reply  to  the  alleged  laches.'  In  England  where  a 
principal  had  made  an  assignment  and  the  surety  wrote  the 
creditor,  "  I  hereby  consent  to  yom'  receiving  the  dividend  under 
II's  assignment,  and  do  agree  that  your  so  doing  shall  not  preju- 
dice your  claims  upon  me  for  the  same  debt ;"  the  letter  was  held 
not  to  be  a  sufficient  memorandum  in  writing  to  take  the  case  out 
of  the  statute,'  and  that  the  letter,  coupled  with  the  payment,  did 
not  render  it  more  than  a  "  payment  by  a  co-debtor ;" '  which  of 
itself  is  not  sufficient  to  take  a  debt  out  of  the  statute,  as  against 
a  debtor  not  paying  or  approving  of  a  payment.* 

In  this  country,  however,  the  letter  would  undoubtedly  be  held 
a  sufficient  direction  to  the  creditor  to  apply  to  the  principal 
debtor  for  payment  to  bind  the  surety.*  So  assent  to  and  approval 
of  a  payment,  after  it  is  made,  is  sufficient  to  bind  the  party  so 
approving.*  It  is  no  answer  to  a  plea  of  the  statute  that  the 
plaintiff  was  prevented,  by  the  fraud  of  the  defendant,  from 
knowing  the  caijse  of  action  until  after  the  time  of  limitation 
had  expired ; '  but  where  a  count  stated  that  the  defendants 
bored  into  certain  gas  pipes  of  the  plaintiffs  and  affixed  gas  pipes 
of  the  defendants  thereto,  and  kept  them  so  affixed  for  a  long  time 
without  the  knowledge  of  the  plaintiffs,  by  means  whereof  large 
quantities  of  the  plaintiffs'  gas  flowed  out  of  their  pipes ;  that  the 
defendants,  maliciously  contriving  to  prevent  the  plaintiffs  from  dis- 
covering the  trespasses  so  committed  till  six  years  should  have 
elapsed,  fraudulently  and  without  the  plaintiffs'  knowledge  cut  off 
from  the  plaintiffs'  gas  pipes  the  gas  pipes  of  the  defendants  so 
affixed  thereto,  and,  without  the  plaintiffs'  knowledge,  stopped  and 
plugged  up  the  gas  pipes  of  the  plaintiffs  where  the  gas  pipes  of  the 
defendants  had  been  so  affixed,  by  means  whereof  the  plaintiffs 
were  prevented  from  discovering  the  trespasses  until  six  years 
from  their  commission  had  elapsed,  and  thereby  the  remedy  of 

the  plaintiffs  by  action  became  barred ;  held,  that  the  count  dis- 

• 

'  Mason  v.  Croshy,  Daviea's  U.  S.  Cir.  18  N.  Y.  558 :  Munro  v.  Potter,  34 
Rep.  308.  Barb.  858. 

'■*  Cockrill  V.  Sparkes,  1  Hurl  &  Colt.  ^  Huntington  v.  Ballou,  2  Lans.  120. 
699.  8  Imperial  Oas  Co.  v.  London  Gas  Co., 

'^  Shoemaker  v,  Benedict,  11  N.  Y.  10  Exoheq.  38  ;  Troup  v.  Smith's  Ex'r, 
178 ;  Barger  v.  Durvin,  22  Barb.  68 ;  20  Johns.  33 ;  Argall  v.  Bryant,  1 
Payne  v.  Slate,  39  id.  634;  but  see  Sandf.  98,  101;  Allen  V.  Mille,  17 
McClurg  v.  Howard,  45  Mo.  365.  Wend.  203. 

*  Winchell  V.  Howman,  21  Barb.  448 : 

86 


DEFENSES.  [CH.  V  A. 

closed  a  good  cause  of  action/  The  distinction  seems  to  be  that 
the  count  last  named  contained  an  equitable  reason  why  the  statute 
should  not  apply,  whereas  the  replication  first  named  was  set  up 
as  a  legal  defense  to  the  statute.  In  England  the  court  has  since 
refused,  as  a  matter  of  discretion,  to  allow  such  an  equitable  reply 
to  a  plea,  in  an  action  at  law,  to  be  interposed."  But  in  equity, 
where  a  long  time  has  elapsed,  the  statute  will  bar  the  action, 
unless  the  plaintiff  allege  the  facts  were  concealed  from  him,  and 
set  forth  with  particularity  when  and  by  what  means'  the  fraud 
was  discovered,  and  support  such  averments  by  proof.*  An  agent 
who  stands  in  a  fiduciary  relation  to  his  principal,  and  holds  the 
money  of  the  principal  in  trust  for  him,  cannot  set  up  the  statute 
of  limitations  in  bar  of  a  suit  by  his  principal  for  an  account.* 
While  the  debtor  resides  in  an  adjoining  State  the  statute  does 
not  run,  although  he  be  daily  in  this  State  engaged  in  the  trans- 
action of  business ; "  at  least  "until  the  aggregate  of  the  time,  the 
debtor  was  within  the  State  amounts  to  six  full  years."  In  an 
action  against  the  stockholder  of  a  plank-road  company,  for  a  debt 
of  the  corporation,  the  statute  runs  in  favor  of  the  stockholder 
from  the  time  the  debt  becomes  due  against  the  corporation.'' 

In  an  action  by  an  attorney  for  his  services  the  statute  runs 
from  the  recovery  of  judgment,  or  at  least  when  execution  is 
issued ;  *  even  though  the  client  have  collected  the  judgment 
within  six  years ;  °  although  the  attorney  may  reach  money  in  the 
hands  of  the  sherifi"  by  proceedings  to  do  so."*  The  statute  does 
not,  however,  commence  to  run  as  to  any  part  of  the  claim,  until 
the  proceeding  is  fully  terminated  by  judgment  or  settlement, 
although  after  a  new  trial  be  granted  nothing  be  done  for  years.'"* 
Where  a  party  is  made  so  by  amendment  he  may  avail  himself 
of  the  statute,  if  it  had  run  when  he  was  brought  in."    An  action 

'  Imperial  Oas  Go.  v.  London  Gas  Co.,        '  ConUin  v.  Furman,  8  Abb.  N.  S. 

10  Excheq.  38,  and  see  the  cases  cited  161. 
in  the  note  to  Johnson's  Am.  ed.,  p.  45.        ®  Bruyn  v.    Comstock,  56   Barb.  9 

*  Hunter  \.  Gibbons,!  Hurl.»&  Norm.  Adams  v.  Fort  Plain  Bank,  36  N.  Y 
459.  255  ;  Mygatt  v.  Wilcox,  45  id.  309. 

»  Badger  v.  Badger,  2  Clifford,  137.  »  Bru:yn  v.  Comstock,  56  Barb.  9. 

*  Burdick  v.  Garrick,  L.  R.,  5  Ch.  '"  Ante,  chap.  4a,  title.  Limitations. 
App.  233,  distinguishing  In  re  Ilind-  >'  Mygatt  v.  Wilcox,  45  N.  Y.  306. 
marsh,  1  Drewry  &  Smale,  129.  '"^  Plowden  v.    Thorp,  West.   H.   U 

6  Bassett  v.  Bassett,  55  Barb.  505.  Cas.  43. 

^Bennett  v.   Cook,   43  N.  Y.  537; 
Campbell  v.  White,  22  Mich.  178. 


CH.  V  A.]  DEFENSES.  683 

against  trustees  of  a  manufacturing  company  to  recover  a  debt 
against  the  company,  on  the  ground  that  the  trustees  did  not 
make  an  annual  report  as  to  the  condition  of  the  company  as 
required  by  statute,  subjects  the  defendants  to  a  penalty  or  for- 
feiture, and  is  barred  in  three  years.*  Where  payment  of  part  of  a 
moiety,  due  to  one  joint  creditor,  is  made  with  the  mteution  of 
extinguishing  his  half  of  the  debt,  the  payment  takes  the 
remainder  of  the  debt  out  of  the  statute  in  favor  of  the  other 
creditor."  It  was  held  under  the  Revised  Statutes,  that  the 
statute  in  favor  of  sheriffs  did  not  extend  to  acts  done  colore 
officii  ;  ^  the  rule  is  otherwise  under  the  Code.* 

Married  women.  —  In  an  action  upon  a  promissory  note  by  an 
indorsee,  an  answer  that,  at  and  before  the  making  of  the  note, 
the  defendant  was  and  still  is  a  married  woman  prima  facie  con- 
tains a  good  defense ;  *  a  married  woman  cannot  give  her  own 
accommodation  note  for  others  so  as  to  bind  herself  or  estate.' 

Master  and  servant.  —  In  an  action  against  a  master  for  not 
teaching  an  apprentice,  it  is  a  good  defense  that  the  apprentice 
would  not  be  taught,  and  by  his  own  willful  acts  prevented  the 
master  from  teaching  him.^ 

Mistake.  —  In  an  action  to  recover  the  proceeds  of  a  sale  of 
property  consigned  to  defendant  by  plaintiff,  it  is  no  defense  that 
the  property  was  shipped  in  plaintiff 's  name  by  mistake ;  that  it 
should  have  been  shipped  in  the  name  of  another  who  had  made 
advances  to  plaintiff  for  a  portion  of  it ;  and  that,  by  arrangement 
between  plaintiff  and  such  third  person,  it  was  to  be  shipped  in 
the  name  of  such  third  person  and  sold  on  his  account."  In 
order  to  entitle  a  party  to  set  up  a  mistake,  or  ignorance  of  the 
contents  of  a  paper,  the  circumstances  should  be  such  as  to  induce 
a  person  of  ordinary  intelligence  to  infer  that  it  was  of  the  nature 
supposed ;  there  must  be  a  reasonable  and  plausible  ground,  too, 
for  the  alleged  belief.*     Where  certain  articles  of  personal  prop- 

'  Merchants'  Bank  v.  Bliss,  1  Rob.  ■•  Raymond    v.    Minton,     L.    R.,    1 

391.  Excheq.244. 

'  Carrington  v.  Crocker,  4  Abb.  N.  •*  Aubrey  v.  Fiske,  36  How.  279,  36 

S.  335.  N.  Y.  47. 

^Morris  v.    Van  Voast,   19   Wend.  ^Schmidt  v.  HurfortJi,  5  Rob.  124; 

283.  Harris  v.  Story,  2  E.   D.  Smith.  367  ; 

*  Gumming  v.  Brown,  43  N.  Y.  514.  Jackson  v.  Cory,  12  Johns.  429  ;  Clem  v. 

^  Scudder  v.  Gori,  3  Rob.  661.  Newcastle,  etc.,  9  Ind.  488;  Breese  v. 

«  Scudder  v.  Oori,  8  Rob.  661.  U.  8.  Tel.,  31  How.  86 ;  Chase  v.  HamiU 


(584  DEFENSES.  [CH.  VA. 

erty  were  accidentally  omitted  from  a  bill  of  sale,  held,  that  such 
omission  might  be  pleaded  as  an  equitable  defense,  and  the  plain- 
tiff could  not  unjustly  avail  himself  of  what  was  a  mere  mistake 
in  the  wording  of  the  instrument ; '  and  it  has  been  held  allow- 
able to  show  that  a  part  of  a  parish,  named  in  an  agreement,  was 
not  intended  to  be  included,  but  had  always  been  treated  as  part 
of  another  parish ; "  so  that  in  a  contract  of  sale  the  brokers  acci- 
dentally omitted  a  clause  that  the  goods  should  conform  to  a 
sample.' 

Mitigation.  —  In  assault  and  battery  and  for  false  imprison- 
ment, facts  justifying  a  portion  only  of  the  violence  and  of  the  im- 
prisonment, for  a  portion  of  the  term  complained  of,  may  be 
interposed  in  mitigation ;  *  and  it  seems  to  have  been  held  that 
any  matter  in  mitigation  may  be  pleaded.^ 

Modification  of  contract.  —  A  course  of  dealing  for  six  years 
may  modify  an  express  contract,  and  is  binding  as  a  new  or  modi- 
fied contract ; '  an  unexecuted  contract  under  seal,  upon  which  no 
cause  of  action  has  arisen,  cannot  be  discharged  or  modified  by  a 
new  parol  agreement,  although  fully  executed,^  unless  such  new 
contract  be  accepted  in  lieu  of  the  old  one.* 

Negligence.  —  In  an  action  for  assault  and  battery,  the  defend- 
ant pleaded,  that  defendant  was  riding  in  a  careful  manner  along 
a  public  highway,  and  while  so  riding  the  plaintiff  negligently, 
carelessly,  and  improperly  walked  along  and  across  the  middle  of 
the  highway,  and  thereby  came  in  contact  with  the  said  horse, 
and  was  thereby  knocked  and  thrown  down,  and  bruised  and 
injured,  as  in  the  declaration  mentioned,  without  any  default  on 
the  part  of  the  defendant;  and  that  the  said  hurt  was  occasioned 
by  the  negligent,  careless,  and  improper  conduct  of  the  plaintiff, 
and  not  by  the  default  of  the  defendant ;  and  that  if  the  plaintiff 
had  exercised  due  care  the  same  would  not  have  happened  ;  held, 

ton,  etc.,  20  N.  Y.  55  ;   Hunter  v.  Wal-  '  Steele  v.  Haddock,  10  Excheq.  643. 

ters,  L.  R.,  11  Eq.  292,  L.  R.,  13  Eq.  79,  '  Luce  v.  Izod,  1  Hurl.  &  Norm.  245. 

and   cases   cited  ;  Collins  v.   Coggill,  7  ^  Borrowman  v.  Rossel,  16  C.  B.  N.  S. 

Rob.  91  ;  Ogilvie  v.  Knox,  etc.,  22  How.  58,  111  Eng.  C.  L. 

(U.  S.)  380  ;    2\ickerman  v.  Broicn,  33  *  Foland  v.  Johnson,  16  Abb.  235. 

N.  Y.  297, 1  Redf.  on  Railways,  155, 158  '  Foland  v.  Johnson,  16  Abb.  239. 

159  ;  Oakes  v.  Turquand.  L.  R.,  2  H.  L.  «  Hartford,  etc.  v.  N.  Y.,  etc.,  3  Rob. 

325 ;  Directors  v.  Kisch,  L.  R.,  2  H.  L.  413. 

99 ;   Western  Dank  v.  Addie,  L.  R.,  1  '  Kuhn    v.    Stevens,    1    Rob.     544 ; 

Scotcli  &  Div.  App.  145 ;  Waterman  v.  Clough  v.  Murray,  3  id.  7. 

Jameson,  L.  R.,  2  id.  29.  *  (Jlough  v.  Murray,  3  Rob.  7. 


OH.  VA-]  DEFENSES.  685 

bad  on  special  demurrer,  as  amounting  to  the  general  issue,  and 
also,  that  it  was  bad  as  purporting  to  be  in  confession  and  avoid- 
ance, and  yet,  did  not  auiiiit  the  trespass  or  state  any  circum- 
stances to  justify  it.' 

Notice.  —  Where  a  broker  justifies  the  selling  of  stock  on 
account  of  the  owner  not  having  kept  up  his  margin,  he  must, 
unless  the  contract  provide  for  his  selling  without  notice,  allege 
notice  to  the  owner  and  an  opportunity  by  him  to  make  the 
margin  good ; '  and  an  usage  among  brokers  to  sell  without 
notice  is  no  defense ; '  but  after  notice  the  broker  may  sell,*  and 
the  parties  may  agree  to  treat  as  void  a  sale  made  without  notice, 
when  the  broker  may  again  give  the  notice,  and,  unless  the  pur- 
chaser furnish  the  additional  margin,  he  may  sell  after  waiting  a 
reasonable  time!'  No  notice  of  the  time  and  place  of  the  sale,  it 
seems,  is  necessary,*  and  the  broker  may  sell  without  notice  when 
the  contract  provides  he  may  do  so/  A  contract  for  the  purchase 
and  sale  of  shares  of  stock  at  a  specified  price,  "payable  and 
deliverable  at  seller's  option  this  year,  with  interest  at  six  per 
cent  per  annum,"  is  a  sale  in  presently  the  vendor  becoming  a 
quasi  trustee  for  the  purchaser  and  the  latter  becoming  entitled 
to  all  dividends/  And  when  the  vendor  gives  notice  of  his 
election  to  deliver,  the  rights  of  the  parties  become  the  same 
as  if  that  time  were  named  in  the  contract.  If  new  stock 
be  thereafter  issued  the  vendor  is  not  bound  to  advance  his 
own  money  to  preserve  the  new  shares  which  attach  to  those 
sold.  Unless  the  vendee  furnish  the  means,  he  cannot  claim  the 
vendor  is  in  default  for  not  preserving  the  new  shares.*  The 
vendee  may,  if  he  make  distinct  and  separate  demands,  recover 
the  old  shares,  with  the  dividends,  although  not  entitled  to  the 
new.*  A  defense  that  a  third  person  had  given  the  defendant 
notice  that  the  amount  claimed  belonged  to  him,  by  virtue  of  an 
assignment,  is  not  good  without  an  allegation  that  plaintiff  had 

1  Ball  V.  Matthews,  10  Irisli  Law.  "  Stewart  v.  Drake,  46  N.  T.  449. 
Rep.  316.  See  Hanks  v.  Drake,  49  Barb.  186. 

2  Ritter  v.  Cushman,  35  How.  284 ;  «  Sterling  v.  Jaudon,  48  Barb.  459 ; 
Markham  v.  Jaudon,  41  N.  Y.  235  ;  but  see  Stewart  v.  Drake,  46  N.  Y. 
Hanks  v.  Drake,  49  Barb.  186.  449. 

'  Markham  v.  Jaudon,  41  N.  Y.  235;  '  Milliken  v.   Dehon,  27  N.  Y.  364; 

9  Am.  Law  Reg.  N.  S.  285,  reversing  Markham  v.  Jaudon,  41  id.  243. 

49  Barb.  462.  «  Currie  v.  White,  45  N.  Y.  822. 

*  Stewart  v.  Drake,  46  N.  Y.  449. 


686  DEFENSES.  [CH.  VA. 

in  fact  assigned  tlie  claim.'  But  a  defense  that  supplementary 
proceedings  had  been  commenced  against  plaintiff,  in  which  plain- 
tiff and  defendant  had  been  forbidden  to  transfer,  dispose  of  or 
interfere  with  plaintiff 's property,  is  good,  although  the  proceedings 
were  instituted  after  suit  brought.'  One  who  purchases  and  pays 
for  a  machine  under  an  agreement  that  if,  after  a  fair  trial  by  the 
buyer,  it  does  not  prove  to  be  suited  for  the  vendor's  purposes  and 
entirely  satisfactory  in  all  respects  to  him,  he  may  return  it,  when 
the  seller  will  refund  the  price ;  he  may,  after  a  fair  trial,  if  it  do  not 
answer  his  purposes  or  prove  satisfactory,  return  it  without  notice 
to  the  seller,  or  an  opportunity  to  repair  or  change  it,  althougli 
after  return  it  worked  well,  under  the  seller's  management.'' 

Nuisance.'  —  No  length  of  time  will  give  a  right  to  maintain 
a  public  nuisance ;  the  channel  of  a  river,  subject  to  periodical 
floods,  should  be  carefully  guarded  against  encroachments."  One 
who  has  erected  a  nuisance  is  not  liable  for  its  continuance  after 
he  parts  with  the  property  on  which  it  was  erected,  unless  he 
derive  some  benefit  from  the  continuance,  or  have  sold  with  a 
warranty  of  the  continued  use  of  the  property  as  enjoyed  while 
the  nuisance  existed.*  One  who  defends  an  action  of  trespass,  on 
the  ground  that  he  entered  to  abate  a  nuisance,  must  allege  that 
he  did  so  with  the  least  possible  injury  to  the  owner  of  the  land 
entered,  and  in  a  necessary  and  reasonable  manner ; '  but  in  deter- 
mining this,  the  circumstances  and  kind  of  property  should  be 
taken  into  consideration.^  No  citizen  has  a  right  to  abate  a  nui- 
sance simply  because  it  is  an  encroachment  uj^on  the  public  rights ; 
it  must  annoy  the  public  ;*  if  he  sustain  a  special  injury  thereby 
he  may  abate  it."  Where  there  are  two  methods  of  doing  work 
in  a  public  highway  from  which  damage  may  result  to  a  passer- 
by, the  one  more  dangerous  than  the  other  —  though  both  are 
iigiial  —  it  is  for  the  jury  to  say  whether  the  adoption  of  the 
former  mode  amounts,  under  all  the  circumstances,  to  negligence." 

'  Carpenter  v.  Bell,  1  Rob.  711.  '  Northrop  v.  Burrows,  10  Abb   365. 

'  Aiken  v.  ITyde,  99  Mass.  183.  *  GoldsmitJi  v.  Jones,  43  How.  415  ; 

«  As  to  what  is  a  nuisance  see  Moak's  OriffltJi   v.   McCullum,  46   Barb    563 ; 

note  to  Clarke's  Ch.  359  (new  ed).  Bar  rower  v.  R'tson,  37  id.  301. 

•  Citi^  of  Rochester  v.   Erickson,  46  '  Goldsmith  v.  Jones,  43  How.   415  ; 

Barb.  93.  Harroioer  v.  Ritson,  37  Barb.  301. 

»  Jlnnse  v.  Coining,!  Lans.  388.  '"  Cleveland  v.  Spier,   1(5  C.  B.  X.  S. 

"  Roberts  v.  Rose',?,  Hurl.  &  Colt.  162 ;  399,  111  Eug.  €.  L.  Kep. 
Ely  V.  Supervisors,  36  N.  Y.  300. 


CH.  VA.]  DEFENSES.  687 

Officer.  —  Where  an  officer,  in  doing  a  legal  act,  is  called  upon 
to  exercise  liis  discretion  as  to  the  hest  method  of  doing  an  act, 
he  acts  judicially ;  his  judgment  is  conclusive  upon  the  question, 
and  he  is  not  liable,  civilly,  to  any  one  for  the  manner  in  which 
he  exercises  his  discretion.'  But  if  he  can  accomplish  the 
desired  end  without  destroying  private  property,  he  is  required 
to  do  so  except  in  cases  of  overruling  necessity.^ 

Officers  of  corporations.  —  In  an  action  against  trustees  of  a 
manufacturing  company  to  recover  the  amount  of  a  debt  against 
the  corporation,  on  the  ground  that  the  defendants  did  not  make 
an  annual  report  of  the  condition  of  the  company,  laches  for  a 
less  time  than  bars  the  cause  of  action,  under  the  statute  of  limita- 
tions, is  no  defense. ° 

Ownership.  —  Allegations  in  an  answer,  that  plaintiff  is  not 
the  owner  of  the  note  sued  upon,  without  denying  the  facts 
alleged  in  the  complaint  showing  that  he  is  are  frivolous.*  A 
denial  of  all  matters  inconsistent  with  the  answer  is  merely  a 
re-affirmance  or  repetition  of  the  matters  already  pleaded." 

Parent  and  child.  —  In  an  action  brought  by  a  father  to 
recover  money  received  from  his  infant  child,  it  is  a  good  defense 
that  the  infant  having  contracted  a  debt  to  the  defendant,  gave 
him  an  order  on  a  third  person  on  account  of  wages  earned  by 
him,  upon  which  defendant  received  the  money  in  good  faith.* 

Payment.  —  The  acceptance  by  a  creditor,  from  his  debtor,  of 
a  bill  or  note  made  by  the  debtor  or  by  a  third  person,  on  account 
of  a  precedent  debt,  does  not  satisfy  it,  unless  the  parties  agreed 
that  it  should  be  received  as  payment  ;^  and  the  onus  of  showing 
such    agreement  is  upon  the  debtor;*   and  he  may  contradict 

*  Crn(ferwwf?v.  ©reew,  3  Rob.  86,  93;  ^Merchants'  Bank  v.  Bliss,  1  Rob. 

Grifflth  V.  FoUett,  30  Barb.  630  ;  3IiUs  391. 

V.  Brooldyn,  33  N.  Y.  489 ;  Board  of  ^  Plant   v.    Schuyler,  7  Rob.  271,  4 

Commissioners  v.    Vanderhilt,  3   Rob.  Abb.  N.  S.  146. 


883 ;  Wilson  v.  Mayor,  1  Den.  599 
Kendall  v.  Stokes,  ^'B.o\y.  (U.  S.)  87 
People  V.  Collins,  19  Weud.  56  ;  Matter 


*  Plant  V.   Schmfler,  7  Abb.  371,  4 
Abb.  N.  S.  146. 

*  Herrick  v.  Fritcher,  47  Barb.  589. 


of  Church  street,  49  Barb.  455.  ■>  Noel  v.   Murray,    13   N.   Y.   167  ; 

''Cleveland  v.  Spier,  l(S  C.  B.  jST.  S.  Smithy.  Apple(jate,\T>Vi\y,^\  ;  Buswell 

399,  HI  Eng.  C.  L.  Rep. ;  Hicks  v.  Dorn,  v.  Pioneer,  4  Abb.  X.  S.  34-1 ;  Darnell 

54  Barb.  173,  affirmed,  9  Abb.  N.  S.  v.  Morehouse,  30  How.  511 ;  Paine  v. 

47,  and  cases  cited  in  note,  43  N.  Y.  Voorhees,  36  Wis.  533  ;  Lear  v.  Frieda 

4:1 ;   see   cases  of  tlie  same  character  lander,  45  Miss.  559. 
provided  for  by  statute  laws  of  N.  Y.        *  Noel  v.   Murray,   13   N.  Y.    167 ; 

1870,  vol.  1,  p.  53ft  Freeland  v.  Van  Campen,  36  How.  29 


688  DEFENSES.  [CH.  VA. 

tlie  language  of  a  receipt.*  The  acceptance,  however,  suspends 
the  remedy  of  the  creditor  upon  the  original  indebtedness, 
until  the  note  or  bill  becomes  due."  If  the  note  or  bill  was 
received  at  the  time  of  the  creation  of  the  debt,  the  presumption 
is,  that  it  was  agreed  to  be  taken  in  payment,  and  the  onus  of 
showing  that  it  was  not  is  upon  the  creditor ;'  unless  the  sale  was 
for  cash,  and  a  check  is  received  as  a  means  of  drawing  the 
money ;  *  although  a  check  may,  by  agreement,  be  taken  in  pay- 
ment.^ That  a  note  of  a  third  person,  received  at  the  time  of  the 
contraction  of  a  debt,  was  not  received  in  payment,  may  be  shown  by 
circumstances  or  the  subsequent  conduct  of  the  parties.'  Where 
the  seller  requested  the  buyer  to  get  him  a  draft  on  New  York  for 
the  amount  of  the  purchase,  and  the  latter  procured  one  from  a 
banker  in  good  standing,  which  the  seller  accepted,  it  was  held  a 
payment.''  The  giving  of  a  new  note  by  one  of  two  joint  and  sev- 
eral makers  of  a  former  note,  but  without  an  agreement  that  such 
new  note  shall  be  received  as  payment,  and  without  its  being  in 
fact  paid,  constitutes  no  defense  to  the  original  note.* 

"Where  one  holding  an  executory  contract  for  the  conveyance 
to  him  of  certain  premises,  subject  to  a  mortgage,  renders  services 
for  the  mortgagee  upon  an  agreement  that  the  value  thereof  shall 
be  applied  as  a  payment  upon  the  mortgage,  he  is  entitled  to  the 
benefit  of  such  payment  as  against  a  subsequent  assignee  of  the 
mortgage."  If  a  note  be  payable  at  a  bank,  the  deposit  therein 
of  an  amount  sufficient  to  pay  it  is  not  sufficient  to  extinguish  it. 
If  pleaded  as  a  tender,  it  simply  bars  the  recovery  of  subsequent 
interest,  and  if  brought  into  court  entitles  the  maker  to  subse- 
quent costs.  The  holder  is  entitled,  in  any  event,  to  a  verdict  for 
the  amount  of  the  note  and  interest  to  tlie  day  of  tender."  A 
vendor  who  has  given  credit  to  an  agent,  believing  him  to  be  the 
principal,  cannot  recover  against  the  undisclosed  principal,  if  the 
principal  has  hona  fide  paid  the  agent  at  a  time  when  the  vendor 

'  Bmwell  y.  Pioneer,  4  Abb.  N.  S 
244 ;  Sear  v.  Friedlanaer,  45  Miss.  559 

*  Smith  V.   Applegate,   1   Daly,  91 
but  see  Paine  v.  Voorhies,  23  Wis.  522 

3  Noel  V.   Murray,   13  N.   Y.    167 
Younrjs  V.  Stahlen,  34  id.  258 ;  Gibson    4  Abb.  N.  S.  276. 
V.  Tohey,  46  id.  637.  '  Hartley  v.  Ilatham,  1  Rob.  246. 

•*  Darnell  v.  Thomas,  36  How.  511 ;       "  UUl  v.  Place,  7  Rob.  389. 
Iktrier  v.  Bank,  3  Keyes,  425. 


^  Turner  v.  Bank,  3  Keves,  425. 
«  Yoicngs  v.  Stahlen,  34  N.  T.  258. 
1  Oibson    V.    Tobey,  46   N.  Y.   637 ; 
Moore  v.  Quint,  44  Vt.  97. 
»  Bates  V.  Rosekrans,  37  N.  Y.  409 ; 


en.  VA.]  defej^-ses.  689 

still  gave  credit  to  the  agent  and  knew  of  no  one  else  as  principal.' 
The  plaintiflP,  at  the  request  of  M,  her  solicitor,  lent  to  the  de- 
fendant £200  on  the  security  of  his  bond;  M  was  also  the 
solicitor  of  the  defendant,  and  was  accustomed  to  receive  his 
rents  and  make  payments  on  his  account;  the  plaintiff  applied  to 
M  for  payment  of  the  bond  ;  M,  who  was  then  indebted  to  the 
defendant,  borrowed  the  amount  from  a  bank  with  whom  he 
deposited  the  bond  as  a  security,  and  with  the  money  so  borrowed 
paid  the  bond.  The  defendant  had  no  knowledge  of  this  trans- 
action. M  afterward  died  insolvent,  and  the  bank  sued  the 
defendant  on  the  bond  in  the  name  of  the  plaintiff.  Held,  there 
was  no  payment  of  the  bond  by  the  defendant."  P,  a  solicitor 
employed  both  by  a  mortgagor  and  the  mortgagee,  received  the  in- 
terest of  the  mortgage  debt  regularly  ;  after  a  time  he  fraudulently 
obtained  from  the  mortgagor  a  portion  of  the  principal ;  at  first 
the  mortgagee  received  his  interest  regularly  from  P  at  his  office, 
but,  ultimately,  P  allowed  the  interest  to  fall  into  arrear  till  a 
large  sum  became  due  to  the  mortgagee ;  during  this  time  the 
mortgagee  made  no  application  to  the  mortgagor,  in  consequence 
of  the  irregularity  in  payment.  In  September,  1853,  the  mort- 
gagor paid  the  mortgagee  £43  13s.  9d.  as  a  half-year's  interest  on 
the  principal  remaining  due  ;  that  led  to  an  explanation  and  the 
discovery  of  the  fraudulent  receipt  of  the  principal  by  P.  The 
mortgagee  did  not  repudiate  the  payment  at  the  time.  On  the 
24th  of  February,  the  mortgagor  wrote  to  inquire  in  what  way 
he  should  pay  the  half-year's  interest  just  due,  expressing  his  fear 
that  P  would  not  be  able  to  make  good  his  defalcations  to  the 
mortgagee.  On  the  26th,  the  mortgagee  wrote  requesting  pay- 
ment by  check ;  and  on  the  4:th  of  March  the  mortgagee  again 
wrote,  saying  that  he  believed  that  P  was  hopelessly  involved, 
and  suggesting  that  the  loss  should  be  divided  between  them. 
Held,  that  P  was  the  agent  of  the  mortgagee,  to  receive  the 
interest  but  not  the  principal ;  and  that,  in  order  to  bind  the 
mortgagee  by  the  acts  of  P,  in  receiving  the  principal,  it  was 
necessary  to  show  either  that  what  he  did  was  with  the  intention 
of  adopting  the  acts  of  P,  or  that  the  position  of  the  mortgagor  was 

'  Armstrong  v.  Stokes,  3  Eng.  Rep.         "^  Lucas   v.    Wilkinson,  1    Hurl.    & 
217,  L.  R.,  7  Q.  B.  598,  and  see  note  at    Norm.  420. 
end  of  case. 

87 


690  DEFENSES.  [CH.  V  A. 

altered.'  One  offered  to  a  bank,  in  payment  of  a  note  nearly  due, 
a  check  drawn  upon  a  bank  by  one  of  its  own  customers ;  the  bank 
declined  to  accept  it  as  payment,  but  consented  to  retain  and 
apply  it  to  the  note  if  the  check  was  made  good  on  the  day  the 
note  fell  due.  On  that  day,  a  balance  appeared  against  the  drawer 
of  the  check,  but  soon  after,  new  credits  having  been  made  to 
him,  the  bank  charged  the  check  to  his  account  and  credited  the 
note  as  paid.  This  transaction  was  held  to  operate  as  an  absolute 
payment  of  the  note.'  Such  entries  upon  the  books  of  the  bank 
were  of  precisely  the  same  effect  as  if  the  money  was  first  paid  to 
the  payee  of  the  check,  and  instantly  repaid  to  the  bank.^  It 
has  been  held  that  if  payment  be  made  after  a  writ  be  sued  out, 
the  defendant  must  allege  payment  of  the  costs  as  well  as  dam- 
ages ;*  but  such  is  not  the  law  in  this  country  unless  the  process 
has  been  actually  served  f  and  even  after  service  such  a  payment 
is  good  unless  the  plaintiff  refuse  to  receive  it  unless  the  costs  are 
paid.'  A  payment  after  suit  commenced  to  plaintiff's  clerk,  with- 
out payment  of  the  costs,  is  not  good.''  If  a  new  note,  accepted 
in  payment,  prove  to  be  a  forgery,  it  is  not  a  payment  of  the 
original  note,  or  an  extinguishment  of  the  right  of  action  upon  it.* 
Performance.  —  Under  an  agreement  for  the  sale  of  the  art 
and  mystery  of  manufacturing  and  compounding  a  secret  prepar- 
ation, and  the  exclusive  right  to  make,  use  and  vend  the  same, 
with  a  covenant  on  the  part  of  the  vendor  not  to  impart  the  secret 
and  not  to  make  or  vend  the  article,  in  consideration  of  which  the 
vendee  agreed  to  pay  a  certain  sum  in  installments,  it  was  held 
that  the  covenants  were  independent,  and  the  vendor,  in  suing 
for  the  consideration,  need  not  aver  performance.'  It  is  a  good 
defense  to  an  action  by  a  contractor,  to  recover  for  work  done, 
that,  under  a  clause  in  the  contract,  the  party  for  whom  the  \vork 
was  done  notified  him  to  increase  the  number  of  laborers,  and,  in 

'  Kent  V.  Thomas,  1  Hurl.  &  Norm.  *  Francis  v.  Crywell,  5  Barn.  &  Aid. 

473.  886. 

2  Pratt  V.  Foote,  9  N.  Y.  463,  10  id.  *  Brown  v.  Ferguson,  2  Den.  196  ; 
599  ;  see  Commercial  Bank  v.  Union  Knight  v.  Beach,  7  Abb.  N.  S.  341. 
BanJc,  11  id.  203.  «  Bendit  v.  Annedcy,  27  How.  184; 

3  Pratt  V.  Foote,  9  X.  Y.  463,  10  id.  Caine  v.  Coulton,  1  Hiirl.  &  Colt.  764. 

599  ; V.  Du  Rhone,  MacNaghten's  "^  Bogardns  v.  Richtmyer,  3  Abb.  179. 

Select   Cas.  213  (Phila.  ed.) ;  Beach  v.  *  Goodrich  v.  Tracy,  43  Vt.  314. 

Smith,  30  N.  Y.  131  :  Pattison  v.  Guar-  »  Hard  v.  Seeley  47  Barb.  438. 
dians,  1  Hurl.  &  Norm.  523. 


«JH.  VA.]  DEFE]SrSES.  691 

default  of  his  so  doing,  declared  the  contract  forfeited.'  Where  a 
complaint  seeks  to  recover  for  work  and  labor,  the  defendant  may 
defeat  the  action  by  setting  up  as  a  defense  and  proving  that  the 
work  was  done  under  a  contract  which  plaintiff  failed  to  perform.' 
The  party  must  perform  the  entire  contract,"  but,  under  a  contract 
to  manufacture  three  or  four  models  of  a  mowing  machine,  the 
workman  may  elect  which  he  will  manufacture.' 

Pledge.  —  The  mere  deposit  of  notes  as  collateral  security,  with- 
out transfer  of  the  title,  only  vests  in  the  creditor  or  pledgee  a  con- 
tingent equitable  interest  in  the  notes,  or  the  proceeds  thereof,  if  the 
debt  be  not  paid.  This  equitable  interest  is  subject  to  any  prior 
equity  in  favor  of  the  maker  against  the  pledgor,  and  the  maker 
may,  in  a  suit  on  such  notes,  avail  himself  of  any  equitable  defense 
existing  at  the  time  of  the  pledge.' 

Promissory  uotes.  —  To  a  declaration  upon  a  joint  and  sev- 
eral promissory  note  given  to  plaintift'  by  the  defendant  and  one 
E,  payable  on  demand,  the  defendant  pleaded,  as  an  equitable 
defense,  that  he  made  the  note  jointly  with  E,  for  the  accommo- 
dation of  E,  and  as  his  surety,  only  to  secure  a  loan  made  by 
plaintiff  to  E,  and  that  before  and  at  the  time  when  the  note  was 
made,  the  plaintiff,  having  notice  of  the  premises,  agreed  with 
the  defendant,  in  consideration  of  his  making  the  note  as  such 
surety  as  aforesaid,  that  the  plaintiff  would  call  in  and  demand 
payment  of  the  note  from  E,  within  three  years  from  the  date 
thereof;  that  the  plaintiff,  at  the  time  of  making  the  note,  with 
intent  to  carry  out  the  agreement,  and  with  the  assent  of  the 
defendant  and  E,  wrote  on  the  back  of  the  note  as  follows  : 
"  Memorandum :  This  note  is  to  be  paid  off  within  three  years 
from  date ;"  that  the  memorandum  was  signed  by  E,  but  that  by 
mistake  of  all  the  parties  it  was  omitted  to  be  mentioned  in  the 
memorandum  that  the  plaintiff  was  to  call  in  and  demand  pay- 
ment of  the  note  from  E,  within  three  years;  and  that  the 
plaintiff  neglected  to  call  in  or  demand  payment  of  the  note 
within  the  period  aforesaid,  whereby  he  lost  the  means  of  obtain- 
ing payment  from  E,  who  had  since  become  and  was  insolvent : 
Held,  that  this  plea  disclosed  a  good  equitable  defense,  on  the 

'  Phelan  v.  A.  cfi  S.  R.  R.,  \  Lans.        »  Sliarpe  v.  Johnson,  41  How.  400. 
25vS.     See  Aspinwall  v.  London,  etc.,  11        '  Snoic  v.  Fourth  Nat.  Bank,  7  Kob. 
Uare,  o2o.  4S0. 


692  DEFE]S"SES.  [CH.  VA. 

ground  that  the  condition,  in  consideration  of  which  defendant 
had  become  surety,  had  not  been  performed  by  the  plaintiff.' 

But  where,  in  an  action  on  a  bill  payable  twelve  months  after 
date,  defendant  pleaded  that  he  drew  the  bill  and  delivered  it 
to  the  plaintiff  for  the  accommodation  of  the  acceptor,  and  as 
surety  for  him ;  that,  at  the  time  the  defendant  so  drew  and 
delivered  the  bill  to  the  plaintiff,  it  was  agreed  between  the 
plaintiff  and  the  defendant  and  the  acceptor,  that  the  acceptor 
should  deposit  with  the  plaintiff  certain  securities,  to  be  held  by 
the  plaintiff  as  security  for  the  due  payment  of  the  bill,  and  that, 
in  case  the  bill  should  not  be  duly  paid,  the  plaintiff  should  sell 
the  security  and  apply  the  proceeds  in  liquidation  of  the  bill,  and 
that,  until  the  plaintiff  should  have  so  sold  the  securities,  the 
defendant  should  not  be  liable  to  be  sued  on  the  bill ;  that  the 
said  securities  were  so  deposited  with  the  plaintiff"  by  the  acceptor, 
but  that  the  plaintiff*  had  not  sold  but  still  held  them  ;  held,  that 
oral  evidence  of  the  agreement  alleged  in  the  plea  was  not 
admissible,  as  it  contradicted  or  varied  the  express  written  con- 
tract on  the  face  of  the  bill ; '  so  a  parol  agreement,  at  the  time  of 
the  giving  of  a  promissory  note,  to  renew  it  at  maturity,  is  invalid.* 
Where  the  holder  of  a  note  over-due  for  a  valid  consideration 
agrees  not  to  sue  the  maker  for  a  definite  time,  and,  in  violation 
of  such  agreement,  commences  a  suit  before  the  expiration  of  the 
time  agreed  upon,  the  remedy  of  the  maker  is  to  set  up  such 
agreement  by  way  of  defense  to  the  action ;  he  cannot  sustain  an 
action  on  his  part  for  a  violation  of  the  agreement.*  A  note 
payable  in  installments  is  dishonored  as  to  the  whole  amount  of 
the  note  after  default  in  the  payment  of  one  installment;  one  who 
afterward  purchases  it  takes  it  subject  to  all  the  equities  between 
the  original  parties ; "  so  of  a  note  payable  "  to  the  bearer  A,"  for 
it  is  not  negotiable.*  There  is  some  conflict  in  the  authorities  on 
the  question  whether  a  note  transferred  on  the  last  day  of  grace 
is  dishonored.     In  Massachusetts  it  is  held  to  be ; '  Mobile  in  New 

'  Lavyrence    v.    Walmsly,  12    C.  B.  "»  Pearl  v.  Wells,  6  Wend.  291 

N.  S.  799, 104,  Eng.  C.  L.  Rep.;  see  Sal-  «  Vinton  v.  King,  4  Allen,  5<32. 

mon  V.  Webb,  3  House  Lords  Cases,  510.  ®  Wurren  v.  Scott,  32  Iowa,  22. 

•-  Ahrey  v.  Crux,  L.  R.,  5  C.  P.  37.  ''  Pine  v.  Smith,  11  Gray,  38 ;  Derm- 

^  Bailey    v.    Lane,    21    How.     475,  non  v.  President,  etc.,  5  Cush    194,  1 

affirmed,   13   Abb.  354 ;  EliznhethpoH,  Para,  on  Cent.  217. 

etc.,  V.   Campbell,  id.    87 ;   Kello^  v. 

Olmsted,  28  Barb.  96, 25  N.  Y.  189. 


CH.  YA.]  DEFENSES.  693 

York  it  has  seemingly  held  not  to  be ; '  in  Ohio  it  has  been  held 
that  a  note  payable  "  when  convenient  "  to  the  maker  is  payable 
within  a  reasonable  time/  while  in  Massachusetts  the  reverse  haa 
been  held.'  An  agreement  to  pay  in  "  satisfactory  notes,"  means 
such  notes  as  ought  to  satisfy  a  reasonable  man." 

Reformation  of  contracts.  —  A  contract  cannot  be  reformed 
in  a  collateral  action  by  persons  not  parties  thereto,  nor  claiming 
under  a  party  in  privity  thereto.^ 

Rent. — Where  to  a  declaration  by  the  devisee  of  the  reversioner 
for  rent  on  a  lease  covenanting  to  pay  the  lessor,  his  heirs  and 
assigns,  alleging  that  the  reversion  of  and  in  the  demised  prem- 
ises belonged  to  the  lessor  and  his  heirs,  it  was  held  that  a  plea, 
that  the  reversion  of  and  in  the  demised  premises  did  not  belong 
to  the  lessor  and  his  heirs,  was  good,  notwithstanding  it  was 
alleged,  by  way  of  replication,  that  the  lessee  entered  and  enjoyed 
the  demised  premises  by  virtue  of  the  lease.'  Where  a  tenancy 
from  year  to  year  is  determined  by  a  regular  notice  to  quit,  the 
mere  accidental  detention  of  the  key  by  the  tenant  (who  had 
quit  the  premises  and  removed  his  goods)  for  two  days  beyond 
the  expiration  of  the  term,  does  not  amount  to  any  evidence  of 
use  and  occupation  so  as  to  render  him  liable  for  another  quarter.'' 
An  agreement  by  landlord  and  tenant  that  the  term  shall  be  put 
an  end  to,  acted  upon  by  the  tenant's  quitting  the  premises,  and 
the  landlord,  by  some  unequivocal  act,  taking  possession,  amounts 
to  a  surrender  by  operation  of  law.  Where,  therefore,  the  tenant 
left  the  key  at  the  counting-house  of  the  landlord,  and  the  latter, 
though  he  at  first  refused  to  accept  it,  afterward  put  up  a  board 
to  let  the  premises,  used  the  key  to  show  them,  and  painted  out 
the  tenant's  name  from  the  front ;  held,  sufiicient  evidence  of  a 
surrender  by  operation  of  law.* 

'  Oothout  V.  Ballard,  41  Barb.   33 ;  »  Q^dy  v.  Potter,  55  Barb.  463 ;  Cra- 

Ed wards  on  Promissory  Notes  (1st  ed.),  mer  v.  Benton,  CO  id.  217. 

535.  «  Weld  v.  Baxter,  1  Hurl.  &  Norm. 

s  14  Ohio  St.  Rep.   88,  Edw.  Prom.  568. 

Notes  (1st  ed.),  154,  note.  ">  Gray  v.  Bompas,  11  C.  B.  N.  S.  520. 

3  Barnard  v.  Gushing,  4  Mete.  230,  103  Eng.  C.  L. 

233.  8  Phono  v.  PoppUwell,  12  C.  B.  N.  S. 

-«  14  Oliio  St.  Rep.  90 ;  Guier  v.  Page,  334,   104  Eng.  C.  L.  See  the  note  to 

4  S«rg.  &  Rawle,  1  ;  Moore  v.  Wolsey,  Joluison's   Am.  ed.,  see  also  Revised 

4  Ell.   &  Bl.  213,  250,  256;    Fagen  v.  Statutes  of  N.  Y.,  vol.  2,  p.  134,  ^  6,  3 

Damdsnn,  2  Duer,  153;   See  Stevens  v.  Edm.   St.  13!)  ;  Smith  v.  Devlin,  23  N. 

Low,  2  Hill,  132.  Y.  363 ;  Jloican  v.  Lytle,  11  Wend.  616. 


694  DEFENSES,  [CH.  V  A. 

RepleTin.  —  It  has  been  held  that  when  the  property  taken 
by  virtue  of  a  writ  of  replevin  is  a  living  animal,  and  there  is 
indgment  of  retorno  hahenclo,  in  an  action  on  the  replevin  hond 
for  a  breach  of  the  condition,  it  is  a  good  plea  in  bar  that  before 
the  judgment  in  the  replevin  suit,  the  animal  died,  without  the 
default  of  the  plaintiff  in  such  suit  ;*  provided  the  suit  was 
brought  in  good  faith  f  so  in  replevin  for  a  slave,  he  having  been 
emancipated." 

Rescission.  —  A  provision  that,  if  one  party  shall  fail  to  ful- 
fill his  covenants,  the  contract  shall  be  null  and  void,  gives  the 
other  party  an  option  to  rescind  or  affirm  the  contract.  The 
party  in  default  cannot  repudiate  the  contract  on  the  ground  of 
his  own  wrong.*  One  who  has  contracted  with  A,  for  a  machine, 
may,  by  his  acts,  rescind  that  contract  and  make  a  new  one  with 
A's  assignee."  A  new  contract,  changing  the  mode  of  payment 
for  goods  bought,  and  which  is  substituted  for  the  original  con- 
tract of  sale,  after  the  execution  of  the  latter,  by  the  seller,  and 
canceled  by  the  parties,  deprives  the  seller  of  the  right  of  rescind- 
ing the  sale  and  reclaiming  the  goods  by  reason  of  a  fraudulent 
intent,  on  the  part  of  the  buyer,  not  to  pay  therefor,  existing  at 
the  time  of  the  original  purchase.'  On  a  sale  of  a  machine,  ' '  if 
it  prove  suited  for  the  purpose  and  entirely  satisfactory  in  all 
respects  to  the  purchaser,"  and  if  not  the  seller  to  return  the  pur- 
chase-price; after  trial  of  the  machine,  if  not  satisfactory,  the 
buyer  may  return  it  without  notice  to  the  seller,  or  opportunity 
to  repair  it.'' 

Set-oflF.*  —  It  has  been  held  that,  in  an  action  for  rent,  the 
lessee  cannot  set  off  his  damages  by  reason  of  a  breach  in  a  cove- 
nant in  the  lease  that  the  sub-cellar  shall  be  free  from  percolation 
of  water  through  the  walls  or  floors  thereof;*  that  the  damages 

'  Carpenter  v.  Stevens,  12  Wend.  589.  '  Aiken  v.  Hyde,  99  Mass.  183  ;  see 

See  Dexter  v.  Norton,  47  N.  Y.  65  ;  to  McDonald  v.  Pierson,  38  Barb.  128 ; 

the  contrary  in  effect,  Suydam  v.  Jenk-  Orounsell  v.  Lamb,  1  Mees.  &  Welsb. 

ins,  3  Sandf.  644.  352 ;   Hartford,  etc.,  v.  Brush,  43  Vt. 

2  Walker  v.  Osgood,  53  Maine,  422.  538  ;  Bootlihy  v.  Scales,  27  Wis.  626. 

^  Yonncj  V.  Pickens,  45  Miss.  554.  *  See  Barbour  on  Set-oflP;  Waterman 

■•  Hard  v.  Seeley,  47  Barb.  428,  434.  on  Set-oti',  Recoupment  and  Counter- 

*  Sloan  V.  Van  Wyck,  47  Barb.  634.  claim. 

«  Sparks  v.  Leavey,  1  Rob.  530 ;  28  '  Benkard  v.  Babcock,  2  Rob.  176 ; 

N.  Y.   103;  Adams  v.  Saye,  id.  103;  but  see  Myers  y.  Burns,  33  Barb.  401, 

Mason  v.  DitcKbourne,  1  Mood.  &  Rob.  35  N.  Y.  269. 
460. 


CH.  VA.]  DEFENSES.  695 

must  be  shown  from  the  facts;  that  the  jury  were  the  proper 
judges  of  the  extent  thereof;  and  that  the  damages  recoverable 
were  the  expenses  of  repairing  past  and  preventing  future  in- 
juries ;  *  otherwise,  where  the  landlord  undertook  to  make  the 
repairs,  and  did  the  same  so  negligently  that  the  tenant's  property 
was  injiu-ed  thereby;"  nor  can  the  tenant  recover  damages  for 
the  interruption  to  his  business,  while  the  repairs  are  being  made.' 
In  case  of  mutual  debts,  in  the  absence  of  an  appropriation  thereof 
as  payment,  neither  party  can  be  compelled  to  avail  himself  of  his 
claim  as  a  set-oif;*  even  though  it  be  a  claim  for  not  properly 
performing  work,  for  the  doing  of  which  a  recovery  has  been, 
had/ 

In  an  action  by  an  administrator,  who  sues  in  his  representative 
character  for  a  debt  which  accrued  after  the  death  of  the  intestate, 
the  defendant  cannot  set  off  a  debt  due  to  him  from  the  intestate  in 
his  life-time.*  It  has  been  held  in  England  that,  in  a  suit  to  recover 
as  a  lighterman  for  unloading  coal,  that  a  defense  that  a  portion 
of  the  coal  was  lost  by  plaintiff's  negligence  was  not  an  equi- 
table defense  jpro  tanto?  The  rule  is  clearly  otherwise  in  this 
country.* 

Slander.  —  If  the  occasion  of  the  speaking  of  alleged  slander- 
ous words  render  them  privileged,  the  facts  should  be  pleaded  by 
way  of  defense.  In  an  action  for  slander  in  giving  a  character 
to  a  servant,  it  is  prima  facie  privileged ; "  otherwise,  if  there  be 
actual  or  express  malice,  or  sinister  or  corrupt  motives.  If  there 
be  any  evidence  of  such  malice  or  motives,  the  court  is  bound  to 
submit  the  case  to  the  jury.'  A  communication,  which  would 
otherwise  be  actionable,  is  privileged  if  made  in  good  faith,  upon 

'  Benkard  v.  Babcock,  2  Rob.  176  ;  «  Rees  v.  Watts,  11  Excheq.  410  (in 

Dorwiii  V.  Potter,  5  Denio,  806  exchequer  chamber,  affirming  court  of 

*  Walker  v.  Swayzee,  3  Abb.  138.  exchequer,  9  Excheq.  69G) ;  Merritt  v. 
3  Ward  V.  Eelsey,  42  Barb.  582,  38  Seaman,  6  Barb.  330,  6  N.  Y.  108  ;  Ililh 

N.  Y.  80  ;  but  see  Myers  v.  Burns,  33  v.   Tallman's  Adm'r,   21   Wend.  674 ; 

Barb.  401,  35  N.  Y.  269.  Wat.  on  Set-oflF(lst  ed.),  197,  200,  note. 

*  Peck  V.  3finot,  4  Rob.  323  ;  Halsey  "'  Stimson  v.  Hall,  1  Hurl.  &  Norm. 
V.  Carter,  1  Duer,  669  ;  Harth  v.  Burt,  831. 

43  Barb.   632 ;    Welch  v.   Hazleton,  14  ^  Cases  cited  in  Mr.  Hare's  note  to 

How.  97  ;  Green  v.  Law,  2  Smith  (Eng.)  Stimson  v.  Hall,  1  Hurl.  &  Norm.  836, 

Rep.  668;  in  the  latter  case,  however,  Sohnson's eA\t\on;Battermanv. Pierce, 

the  attorneys  were  severely  censured  3  Hill,  171 ;  Tibhetts  v.  Ayer,  Lalor'a 

for  not  determining  the  entire  matter  Sup.  174. 

in  one  suit.  ^  Jackson  v.  Hopperton,  16  C.  B.  N. 

»  Davis  V.  Hedges,  L.  R.,  6  Q.  B.  687.  S.  829,  111  Eng.  C.  L.;  Fowles  v.  Bowen, 


696  DEFENSES.  [CH.  V  A. 

a  matter  involving  an  interest  or  duty  of  the  party  making  it, 
though  such  duty  be  not  strictly  legal  but  of  imperfect  obligation, 
to  a  person  having  a  corresponding  interest  or  duty ;  *  as  the  report 
of  a  committee  to  a  college  of  pharmacy  in  regard  to  the  impor- 
tation of  spurious  and  adulterated  drugs ; '  or  a  report  or  charge 
to  a  society  of  which  plaintiff  was  a  member."  The  proprietors 
of  a  mercantile  agency  are  not  liable  for  what  they  say  in  good 
faith,  as  to  the  credit  of  a  merchant,  to  a  subscriber  who  expressly 
asks  for  an  answer ; '  otherwise  for  a  general  publication  as  to  his 
solvency  even  to  subscribers  only.*  So,  as  to  the  report  of  a  phy- 
sician, that  one  is  insane  nnless  made  in  the  discharge  of  a  duty, 
and  to  a  person  having  a  corresponding  duty  in  reference  to  the 
subject-matter.*  What  one  says  when  inquired  of  by  a  friend  of 
the  plaintiff,  as  to  a  charge  he  had  made,  is  not  privileged ; '  an 
attorney's  clerk  who  states  to  one,  not  expected  to  be  a  witness, 
that  a  witness  is  to  be  indicted  for  perjury,  is  liable.''  What  a 
juror  says  in  the  jury  room,  in  discussing  the  case  under  consid- 
eration, is  privileged.*  What  a  witness  says,  if  he  believes  his 
answers  to  be  pertinent  and  relevant  to  the  question  at  issue,  is 
privileged ;  otherwise,  if  actuated  by  malice,  or  knowing  that 
what  he  says  is  not  relevant,  he  avails  himself  of  the  opportunity 
to  defame  the  plaintifl'.'  When  words  imputing  misconduct,  of 
which  two  persons  are  alleged  to  have  been  jointly  guilty,  are 
spoken  to  one  of  them  under  circumstances  which  make  the  com- 
munication privileged  as  to  him,  the  slanderer's  statement  is  j^riv- 
ileged  as  to  the  other."  As  where  a  party  mentioned  to  the 
rector  of  her  parish  a  rumor  which  she  had  heard,  impugning  his 
conduct  and  the  conduct  of  the  plaintiff,  his  solicitor,  in  the  man- 
agement of  a  certain  trust,  the  jury  having  found  that  the  words 
were  spoken  bona  fide  and  without  malice,  under  the  belief  that 
it  was  important  for  the  rector  to  know  the  rumor  in  order  that 
he  might  clear  his  character." 

30  N.  Y.  20  ;  Tliorn  v.  Moser,  1  Denio,  ^  Perkins  v.  Mitchell,  31  Barb.  4G1, 

488.  466,  468. 

'  Van  Wyck  v.  Aspinwall,\l  N.  Y.  *  Thorn  v.   Moser,    1    Denio,   488; 

190.  Griffith  v.  Letoix,  3  N.  Y.  Leg.  Obs.  330. 

*  Streety  v.  Wood,  15  Barb.  105.  '  Brown  v.  Cooper,  2  N.  Y.  Leg.  Obs. 
3  Ormsby  v.  DoufiluHH,  37  N.  Y.  477.  355. 

*  Sunderlin  v.  Bradstreet,  46  N.  Y,        *  Dvnham  v.  Powers,  42  Vt.  1. 
188  ;  Taylor  v.  Church,  1  E.  D.  Sniitli,        '  White  v.  CarvM,  42  N.  Y.  161. 
279,  10  N.  Y.  Leg.  Obs.  87,  8  N.  Y.  452.       ">  Davies  v.  Unead,  L.  R.,  5  Q.  B.  608, 


CH.  VA.]  DEFENSES.  G97 

Although  a  defendant  cannot  prove  an  isolated  act  or  declara- 
tion by  plaintiff  toward  or  relative  to  defendant  long  before  the 
alleged  speaking/  yet  he  may  prove  a  series  of  provocations 
commencing  long  anterior  to  the  speaking  and  continued  from 
time  to  time  down  to  and  at  the  time  of  the  speaking ; "  and  so 
in  assault  and  battery.* 

Specific  performance.  —  It  is  a  good  defense  to  an  action  for 
specilic  performance  that  the  defendant,  a  woman  little  versed  in 
business,  was  induced  to  execute  the  paper  in  the  absence  of  legal 
advice,  and  signed  it  under  a  misapprehension  of  its  contents ;  * 
although  there  be  no  direct  proof  of  fraud  or  undue  influence," 
if  it  would  be  inequitable  to  decree  a  specific  performance ;  °  or 
where  the  agreement  does  not  fully  express  the  terms  of  the  con- 
tract.' So  if  the  buyer  be  misled  by  a  plan  presented  by  the 
seller.* 

Stamp.  —  Under  the  old  practice,  where  an  instrument  was 
void  for  the  want  of  a  proper  stamp,  it  was  not  necessary  to  plead 
the  want  thereof  afiirmatively.  Such  defense  was  available  under 
a  denial  of  the  execution  of  the  instrument.*  The  same  might 
undoubtedly  be  done  under  the  Code,  although  it  would  unques- 
tionably be  proper  to  plead  the  want  of  a  proper  stamp  affirma- 
tively. 

Surety.  —  It  is  a  good  defense  to  an  action  against  a  surety 
that  he  requested  the  creditor  to  collect  the  debt  from  the 
principal,  and  the  creditor  refused  or  neglected  to  do  so,  pro- 
vided the  principal  was  then  solvent  and  the  debt  was  collectible  ; 
and,  from  a  subsequent  change  in  his  circumstances,  the  debt  has 
become  uncollectible."      But  the  creditor  must  be  requested  to 

'  Richardson  v.  Northrop,  56  Barb.  ^  Denny  v.   Hancock,  L.  R.,  6    Ch. 

105 ;  Stellar  v.  Nellis,  43  How.  163.  App.  1. 

**  Richardson  v.  Northrop,  56  Barb.  ^  Dawson  v.  McDonald,  2  ]\Iees.    & 

105.  Welsb.  26;  Field  v.   Woods,  7  Ad.  & 

»  Stellar  v.  Nellis,  42  How.  163,  but  Ell.  114,  34  Eng.  C.  L. 

see  Puloer  v.  Harris,  61  Barb.  78.  '"  Paine  v.  Packard,  13  Jolins.  174  ; 

•»  Cuff  V.  Dorland,  55  Barb.  481.  King   v.   Baldwin,    17   id.  383 ;    Re>n. 

^Dunnage  v.    White,   1    Wils.   Ch.  sen  v.  Beekman,  35  N.  Y.  555 ;  Singer 

Rep.  67.  V.  Troutman,  49  Barb.   184.     See   the 

^  Cuff   V.    Dorland,   55    Barb.   481 ;  doctrine   of  discharge  of   sureties    in 

Shrewsbury,  etc.,  v.  Northwestern,  etc.,  consequence  of  delay  by   the   creditor 

6  H.  L.  Cas.  113  ;  Falcke  v.  Gray,  4  fully  discussed  by  the   editor  of  the 

Drewry,  659.  present  edition  in  note  to  Cla.'ke's  (/h. 

''Cuff'   V.    Dorland,    55   Barb.   481:  p.  73  (p.  75,  wnt?-;/.  pp.).     In  addition  to 

Wright  v.  Weeks,  3  Bosw.  372,  25  N.  Y.  the  cases  there   cited,  see  Galbraith  v. 

153.  FaUevton,  53  111.  126  ;  Banks  v.  Burns, 


698  DEFENSES.  [CH.  V  A. 

collect  tlie  debt  bj  process  of  law  ;*  but  the  debtor  must  be  solvent 
at  the  time  of  such  request."  But  notice  before  the  obligation  be- 
comes due  to  sue  it  when  it  shall  become  due  is  insufficient.' 
Mere  delay,  without  any  request  by  the  surety,  is  not  sufficient.* 
That  the  creditor  had  commenced  a  suit,  attached  sufficient  of  the 
principars  property  to  satisfy  the  note,  but  discontinued  the  suit, 
thus  releasing  the  levy  under  the  attachment  *  is  not  a  defense  to 
a  surety.  But  where  landlords  advanced  money  to  their  tenant 
on  a  joint  note  of  himself  and  a  surety,  and  afterward  took  a 
security  for  this  and  another  sum  advanced  at  the  same  time  by 
an  assignment  of  furniture  of  the  tenant  by  way  of  mortgage, 
held  that,  by  taking  the  furniture  under  a  distress  for  rent  in 
arrear,  they  discharged  the  surety.*  If  a  sm-ety  sign  an  agreement, 
in  the  body  of  which  another  contracting  party  is  named,  he 
is  prima  facie  bound,  although  delivered,  without  being  exe- 
cuted by  such  other  party  ;^  otherwise  if  it  be  shown  he  executed 
it  on  condition  that  it  was  not  to  be  delivered  until  executed 
by  such  third  person,*  unless  such  third  person  be  the  prin- 
cipal in  the  bond.' 

So  if  one  execute  a  bond  to  which  the  name  of  another  has 
been  forged  without  his  knowledge  he  is  not  liable." 

Plaintiif  sold  out  his  interest  in  a  firm,  taking  a  bond  of  indem- 
nity against  its  debts,  signed  by  defendant  as  surety.     After  the 

2  Lans.  52,  46  N.  T.  170  ;  Murray  Hoff-  «  Peo}yJ.e  v.  Bostwick,  43  Barb.  9,  33 

man's  note  to  Ex  parte  Mure,  2  Cox'a  N.  Y.  445  ;    Hill  v.  Sweetzer,  5  N.  H. 

Cli.   Eep.   74,   and   Sumner's   note   to  168 ;    Farrington   v.   Bank,  24   Barb. 

Rees  V.   Berrington,  2  Vesey,  Jr.  540.  554 ;    Miller    v.    Oambie,    4  id.     146 ; 

'  Singer  v.  Troatman,  49  Barb.  182.  Seymour    v.     Voicing,  1   Keyes,  537  ; 

"^  Herrick    v.    Borst,    4     Hill,    650 ;  Small  v.  Smitli,  1  Denio,  583  ;    Atcde  v. 

Thompson    v.     Hall,    45    Barb.   214 ;  Dixon,  5  Eng.  L.  and   Eq.   Rep.  512,  6 

Merrit  v.     Lincoln,   21  id.    249.      As  Excheq.  869 ;  Leaf  v.  Gibbs,  4  Carr  & 

to  the  meaning  of  insolvency,  see  same  Payne,  466;   JJ.    8.  w.  Le.ffler,  11   Pet. 

cases,  and  43  N.  Y.  75,4  Rob.  427,  434.  86  ;  Evans    v.    Brimridge,  8  De  Gex, 

'  Heeln  v.  Crawford,  8  Wright  (Pa.),  MacNaghten  and  Gordon,  100  ;  but  see 

cited  3  Am.  Law.  Reg.  N.  S.  310.  McCormick  v.  Bay  City,  23  Mich.  457, 

*  Van  Rensselaer  v.  Kirkpatnck,  46  contra  to  People  v.  Bostwick,  supra ; 
Barb.  194.  also  State  v.  Pepper,  8  Am.  Law.  Reg. 

*  Bellows  V.  L(n)i'U,  4  Pick.  153  ;  but  N.  S.  665, 31  Ind.  76  ;  and  see  Spittler  v. 
see  Mahew  v.  Crickett,  2  Swanst.  185,  James,  32  id.  202,  as  to  a  negotiable 
and  note  190,  as  explained  in  Wade  v.  note  passed  to  a  bona  fid^  holder  ;  als9 
Coope,  2  Simons,  160-1.  Zeighler  v.   Beasley,  44  Geo.  56  ;  as  to 

*  Pearl  v.   Deacon,  1    De  Gex   and  note  being  ordered  to  be  canceled. 
Jones,  461,  affirming  24  Beav.  186.  ^  Williams  v.  Marshall,  42  Ba;  b.  524. 

■>  Dillon  V.  Anderson,  43  N.   Y.  234;       "  Seeley  v.  People,  2  Am.  L.  Reg.  N. 
McLai/f/hlin    v.   McGovern,    34   Barb.     S.  344. 
208 ;  Parker  v.  Bradley,  2  Hill,  584. 


CH.  V  A.l  DEFENSES.  699 

execution  of  the  bond  an  indebtedness  was  changed  from  an 
account  to  a  note,  payable  infuturo.  This  note  was  subsequently 
sued,  merged  in  a  judgment,  and  paid  by  plaintiff  without  &ny 
notice  to  defendant.     Held,  defendant  was  discharged.' 

A  surety  is  not  liable  upon  a  bond  with  the  name  of  the  payee 
in  blank.'  An  agreement  by  a  creditor  with  a  surety,  to  extend 
the  time  of  payment,  so  as  to  discharge  a  surety,  may  be  found 
from  the  circumstances  of  the  transaction,  as  the  payment  of 
interest  in  advance,  if  such  M^as  the  intention  of  the  parties  with- 
out an  express  agreement  to  that  effect.' 

Where  the  holder  of  a  note  has  in  his  hands  a  fund  belonging 
to  one  of  the  makers,  who  is  the  principal  debtor,  the  other  being 
a  surety,  such  surety  may  compel  the  creditor  to  satisfy  the  note 
out  of  that  fund  before  calling  upon  the  surety.*  If  one  become 
surety  for  property  to  be  sold,  he  is  not  liable  if  part  of  the  obh- 
gation,  without  his  assent,  be  applied  upon  an  old  indebtedness  ;* 
otherwise  if  with  his  assent.* 

Where  the  surety  was  induced  to  execute  a  bond  on  a  repre- 
sentation by  the  obligee  that  the  principal  was  not  indebted  to 
him,  whish  statement  was  untrue,  the  court  directed  the  bond  to 
be  canceled.  Where  the  bond  by  a  surety  was  given  to  guaranty 
the  payment  of  flour  to  be  supplied  by  the  obligee  (of  a  specified 
quality)  in  order  to  enable  the  principal  debtor  to  execjute  a  con- 
tract, and  the  obligee  designedly  supplied  inferior  flour  so  that 
the  contract  was  annulled,  the  obligor  is  entitled  to  have  the 
bond  canceled ;  ^  so  where  one  becomes  surety  for  a  particular 
article  he  is  not  liable  if  a  different  one  be  supplied.*  If  a  surety 
pay  an  illegal  obligation  at  the  principal's  request,  he  is  entitled 
to  recover  the  amount  paid.' 

Telegraph  company.'" —  In  an  action  for  not  delivering  a  tele- 

1  TTiurber  v.  Jenkins,  36  How.  66.  Shuttleworth,  53  Barb.  357 ;    Bates   v. 

«  Sqnire  v.  Whitton,  1  H.  L.  Cas.  333  ;  Rosekrans,  37  N.  Y.  409, 4  Abb.  N.  S.  276. 

but  see  Van  Etta  v.  Evenson,  28  Wis.  ^  MaWilliams  v.  Mason,  6  Duer,  276, 

33,  that  such  a  bond  is  binding,  where  2  Abb.  N.  S.  211, 1  Rob.  576 ;  see  SuUy 

executed  with  the  name  of  the  payee  v.  Frean,  10  Excheq.  535 ;  Stewart  v. 

in  blank,  with  intent  that  it  shall,  not-  McKean,  id.  675. 

witlistanding,  be  valid.  **  Ilam  v.  Greve,  34  Ind.  19. 

3  Wakeiidd  Bank    v.    Truesdell,  55  '  Blest  v.  Brown,  3  Giffard,  450. 

Barb.  602.  »  Grant  v.  Smith,  46  N.  Y.  93. 

••  V,'right  v.   Austin,  56    Barb.   13  ;  '  Powell  v.  Smith,  5  Am.  Law  Timea 

Moiik'ri  note  to  Bechervaise  v.  Leicis,  2  Rep.  355,  66  North  Carolina  R^p.  401-., 

Eug.   Rep.   687,  but    see    Watson    v.  '"  Upon   the    subject    generally   see 


700  DEFENSES.  [CH.  VA. 

graph  message  at  all,  an  answer  wliicli  alleges  tliat  tlie  company 
was  not  responsible  for  "  delays,  errors  or  remissness,"  contains 
no  defense.  These  failures  imply  an  imperfect  performance,  and 
do  not  exonerate  from  liability  for  entire  failure  to  send.'  So  an 
answer  is  not  sufficient  if  it  merely  alleges  that  the  injmy  com- 
plained of  was  the  consequence  of  his  own  negligence  in  not 
having  the  message  repeated,  or  sending  another;  there  is  no 
statement  of  facts  from  which  the  court  can  see  negligence  as  a 
matter  of  law/ 

Tender.  —  In  order  to  make  a  tender  good,  it  is  not  sufficient 
that  the  debtor  has  the  money  in  his  pocket,  or  about  him,  ready 
to  pay.  He  must  offer  to  deliver  it  to  the  creditor  ; "  unless  he  dis- 
pense with  such  offer  by  some  positive  act  or  declaration.'  One 
who  desires  to  rescind  an  agreement  on  the  ground  of  fraud  is 
bound  to  tender  back  what  he  received  under  it  hefore  suit ;  *  and 
must  do  so  promptly  after  discovery  of  the  fraud.^  Otherwise  if  he 
simply  seek  to  recover  damages  for  the  fraud  without  rescission ;  * 
or  if  the  fraudulent  purchaser  has  realized  as  much  by  the  use  of 
the  property  as  he  paid  on  the  purchase.^ 

Should  the  party  guilty  of  the  fraud  abscond,  the  best  tender 
which  the  party  defrauded  can  make,  is  all  that  is  required.  In 
such  case  a  tender  to  the  wife  of  the  party  commiidng  the  fraud, 
if  she  be  in  the  possession  of  the  fruits  of  it,  is  sufficient.*  Readi- 
ness to  pay  a  note  at  the  place  where  it  is  payable,  on  the  day  it 
falls  due,  bars  the  recovery  of  further  interest  and  costs.°  If  the 
maker  desire  to  avail  himself  of  such  readiness  as  a  tender,  he 
must  aver  that  the  money  has  been  actually  brought  into  court, 

Scott  &  Jarnegan  on  Telegraph  Com-  Bassett    v.    Broicn,    105    Mass.    551  ; 

panies.  Haana  v.  Shields,  34  Ind.  84 ;  Gates  v. 

'  Baldwin,  v.    U.  S.  TelegrapJi    Co.,  Bliss,  43  Vt.  299  ;  Goldsmith  v.  Bryant, 

6  Abb.  N.  S.  405 ;  see  same  case  after  26  Wis.  34. 

a  trial  on    the    merits,  1  Lans.     12.').  ^  Central  Bank  v.  Pindar,  46  Barb. 

The  reversal  of  this  case,  after  a  trial  46*7  ;  Cohh  v.  Hatfield,  46  N.  Y.  533 ; 

on  the  merits  (45  N.  Y.  744j,  did  not  Bassett  v.  Brown,  105  Mass.  551 ;  Bruce 

affect  these  questions,  but  was  upon  v.  Davenport,  5  Abb.  N.  S.  185,  3  Keyes, 

the  ground  that  the  damages  were  im-  472 ;    Haana  v.   Shields,   34   lud.   84 ; 

properly  assessed.  Gates  v.  Bliss,  43  Vt.  299 ;  Goldsmith 

•■'  Strong  v.  Blake,  46  Barb.  227 ;  Lewis  v.  Bryant,  26  Wis.  34. 

V.  Mutt,  36  N.  Y.  402  ;  Cobb  v.  Hatfield,  «  Ely  v.  Mumford,  47  Barb.  629. 

46  id.  533  ;  lAwy  v.   Wilson,  24  Mich.  '  Pearse  v.  Pettis,  47  Barb.  276.    See 

479.  Kinney  v.  Kiernan,  2  Lans.  492. 

3  Stronff  V.  Blake.^Q  Barb. 221 ;  Lacy  "  Goldsmith  v.  Bryant,  26  Wis.  34. 

V.  Wilson.,  24  Mich.  479.  »  Hill  v.  Place,  5   Abb.  X.  S.  18,  7 

•»  Central  Bank  v.  Pindar,  46  Barb.  Rob.  389. 
467 ;  Cobb  v.  Hatfj-eld.  46  N.  Y.  533  ; 


CH.  V  A.]  DEFEISrSES.  701 

and  so  bring  it.*  If  the  tender  be  made  after  suit,  the  costs 
thereof  must  also  be  tendered."  But,  although  if  tender  be  made 
before  suit  defendant  is  entitled  to  costs,  plaintiff  is  entitled  to 
recover  the  amount  of  the  tender ; '  and,  if  the  tender  is  not 
equal  to  the  recovery,  he  is  entitled  to  take  the  same  and  credit 
it  thereon.*  If  defendant  recover  a  verdict,  he  cannot  take  back 
money  brought  into  court  on  a  plea  of  tender  ;  *  but  the  court  may 
order  it  paid  to  defendant  on  his  costs.'  Even  if  the  plaintiff  be 
nonsuited  he  is  entitled  to  the  amount  paid  in.  If,  however,  the 
defendant  be  an  executor  or  administrator,  and  ask  to  be  allowed 
to  take  the  money  out  of  court  on  the  ground  that  he  paid  it 
because  unacquainted  with  the  affairs  of  the  deceased,  the  court, 
on  that  ground,  on  motion,  may  allow  him  to  do  so.''  If  the  plea 
do  not  aver  that  the  money  is  brought  into  court,  and  it  be  not  in 
fact  brought  in,  the  remedy  of  the  plaintiff  is  to  return  the  plea ;  * 
as,  by  accepting  it  and  going  to  trial,  he  waives  the  objection.' 
In  equity,  a  tender  may  be  allowed  at  any  time.'*  A  plea  of 
accord  and  satisfaction  is  not  supported  by  proof  of  a  tender." 

If  a  party,  after  making  a  tender,  go  off,  saying,  he  will  con- 
sult his  lawyer  and  return,  this  is  a  waiver  of  a  previous  ten- 
der.'' A  tender  under  protest  is  good."  If  a  debtor  have  his 
choice  of  two  places  to  pay  or  deliver  articles,  he  is  bound  to 
give  the  creditor  notice  of  which  place  he  elects,  and  a  plea  of 
tender  of  specific  articles  must  state  that  they  were  kept  ready 
until  the  uttermost  convenient  time  of  the  day.'*     In  an  action 

'  Simpson  v.  French,  25  How.  464 ;  "  Rnthhone  v.  Stedman,  Cooke's  R. 

mil  V.  Place,  5  Abb.  N.  S.  18,  7  Rob.  54  (p.  82,  ed.  1872). 

389  ;    Rosevelt  v.  Neio    York,   etc.,  30  "  '  Anonymous,  Sir  Geo.  Cooke's  Rep. 

How.  220  ;  People  v.  Banker,  8  id.  258  ;  10  (ed.  1872),  following  which  is  aa 

Kortright  v.  Cody,  23  Barb.  490  ;  Halsey  interesting  note  as  to  the  origin  and 

V.  Flint,  15  Abb.  368;  Brown  v.  Fer-  practice  of  paying  money  into  court. 

guson,  2  Denio,  196.  Lane  v.  Wilkinson,  Cooke's   Rep.  36  (p. 

2  People  V.  Banker,  8  How.  258.  56,  ed.  1872). 

3  Hill  V.   Place,  5   Abb.   N.  S.  18  ;  «  Simpson  v.  French,  25  How.  464. 
Knight  v.  Beach,  7  id.  241 ;  Thurston  v.  »  Knight  v.  Beach,  7  Abb.  N.  S.  241 
Marsh,  14  How.  574 ;  Slack  v.  Brown,  Rosevelt  v.   New  York,  etc.,  30  How 
13  Wend  390  ;  Wood  v.  Perry,  1  Barb.  226. 

114 ;  Crockpay  v.  Martin,  Cooke's  Rep.  "*  Webster  v.  French,  10  N.  T.  Leg. 

129,  195  (ed.  1872) ;  but  see  Brush  v.  Obs.  126 ;  Hlinois  supreme  court,  S.  C, 

Kohn,  9  Bosw.  589  ;  Logue  v.  Oellick,  11  111.  154. 

1  E.  D.  Smith,  398;  Justison  v.  Craw  "  Hammond  v.  Christie,  5  Rob.  160. 

ford,  25  How.  464-5.  '-  Carrie  v.  WJdte,  7  Rob.  638. 

♦  Dakin  v.  Dunning,  7  Hill,  30.  '*  Scott  v.  Uxhridge,  etc.,  L.  R.,  1  C.  P. 

•  Cox    V.    Robinson,    Cases    Temp.  596. 

Hardw.  (Lees'  ed.,  1815),  206.  "  Aldrich  v.  Alber,  1   Me.  120,  ex- 


702  DEFENSES.  [CH.  V  A. 

for  not  indorsing  a  note,  the  complaint  must  aver  tender  of  one 
ready  for  indorsement/ 

A  tender  to  one  who  is,  in  fact,  the  attorney  of  the  creditor, 
although  he  deny  his  authority,  is  good ;'  and  so  to  one  authorized 
to  collect/  It  has  been  held  that,  under  an  agreement  to  convey 
land  on  a  certain  day,  without  designating  a  place  for  perform- 
ance, a  tender  by  the  vender,  at  the  vendee's  residence,  though 
he  be  absent,  is  good,  he  having  previously  said  he  would  be  at 
home.*  Where  a  party  fraudulently  absents  himself  on  the  last 
day,  or  evades  a  tender,  he  cannot  object  on  account  of  the  want 
of  one  ;^  but  the  answer  must  allege  that  a  tender  or  payment 
was  prevented  through  trick  or  fraud  on  the  part  of  the  plaintiff;* 
and  so  one  to  whom  a  tender  is  required  may,  if  absent,  by  his 
subsequent  conduct,  be  held  to  have  waived  a  personal  tender.'' 

A  manual  tender  or  offer  may  be  and  is  waived  by  an  absolute 
refusal  to  receive  the  money ;  *  so  where  the  party  has  disabled 
himself  from  complying ;  °  or  fraudulently  represent  that  he  has." 
If  the  contract  be  for  the  delivery  of  merchandise  at  a  particular 
place,  readiness  thereat,  if  the  vendor  do  not  appear,  is  sufficient." 

If  no  objection  be  made  to  the  manner  of  the  tendei",  none  can 
subsequently  be  made.'^  If  the  creditor  refuse  to  receive  a 
tender  on  one  ground,  he  cannot  afterward  insist  upon  another 
which  might  have  been  obviated.''  There  is  a  well-known  pro- 
ceeding, somewhat  similar  to  tender,  after  suit  in  ejectment,  for 
non-payment  of  rent.  In  such  cases  the  court,  on  motion,  may 
order  all  proceedings  stayed  on  payment  of  the  rent  due,  and 

plaining  Bobbins  v.  Luce,  4  Mass.  474,  Slingerland  v.   Morse,  8   Johns.  474; 

as  alleging  that  "  alioays "   since  the  Bellinger  v.  Kitts,  6  Barb.  274 ;   Vau- 

note  defendant  had  been  ready.  pell  v.  Woodioard,  2   Sandf.  Ch.  143 ; 

>  Gallagher  v.   Mason,  6  Hill,  346  ;  Merserole  v.  Archer,  3  Bosw.  376 ;  Og- 

Westcott  V.  Keeler,  4  Bosw.  564  ;  Stock-  den  v.  Marshnll,  8  N.  Y.  340  ;  Tracy  v. 

bridge  v.  Schoonmaker ,  45  Barb.  100.  Albany,  etc.,  7  X.  Y.  472  ;  Foote  v.  West, 

'  McTniffe  v.  Wheelock,  1  Gray,  600.  1  .Denio,544;  Metcalfe's  note  to  Banay 

3  Dexter  v.  Broat,  16  Barb.  340.  v.  Alexander,  Yelv.  77. 

*  Smith  V.  Smith,  25  Wend.  405,  as  '  Clark  v.  Crandall,  3  Barb.  612 ; 
explained,  2  Hill,  351.  Main   v.   King,  8   id.  585  ;    Neiccomh 

^  Southworth  v.  Smith,  7  Cush.  39;  v.  Brackett,  16  Mass.  161;  Jnclxon  v. 

Smith  V.  Smith,  25  Wend.  405,  as  ex-  Jacob, '^  Bing.  (N.  Q.)  869;  32  Eng.  C. 

plained,  2  Hill,  351  ;  Judd  v.  Ensign,  L. ;  Holmes  v.  Holmes,  12  Barb.  137. 

6  Barb.  258 ;  Noyes  v.  Clark,  7  Paige,  '»  Clark  v.  Crandall,  27  Barb.  73. 

171 ;  Holmes  v.  Holmes,  12  Barb.  137;  "  Bronson  v.  Wiman.  8  N.  Y.  182. 

9  N.  Y.  525.  '^  Bonglass  v.  Patrick,  3  Term  R.  683. 

*  Bwight  V.  Webster,  32  Barb.  47.  "  Bichnrdson  v.  Jackson,  8  Mees.  & 
'  Howard  v.  Holbrook,  23  How.  64.  Welsh.  298  ;  Carman  v.  Pultz,  21  N.  Y. 
'  Sterne  V.  Sjyragne,  20   Barb.   509 ;  547. 


CH.  VA.]  DEFENSES.  703 

costs.'  If,  however,  ejectment  be  brought  for  not  repairing  the 
premises  according  to  a  covenant  in  the  lease,  as  well  as  for  non- 
payment of  rent,  the  rule  will  not  be  granted  unless  the  defend- 
ant, in  addition,  give  ample  security  to  repair  according  to  the 
covenant;'  otherwise  in  ejectment  for  sub-letting,  contrary  to  the 
terms  of  the  lease.' 

A  tender  to  one  of  two  joint  contractors  is  good  ;*  a  tender  of  a 
deed  executed  in  a  county  other  than  that  in  which  the  land  lies, 
if  acknowledged  before  a  justice  of  the  peace,  is  not  good,  unless 
accompanied  by  the  county  clerk's  certificate  of  the  official  char- 
acter of  the  justice,  so  it  can  be  recorded  in  the  county  where  the 
land  lies,  if  objected  to  on  that  ground.^  In  an  action  upon  an 
agreement  to  repurchase  bonds,  the  purchaser  must  tender  them 
and  demand  payment  of  the  contract  price  ;*  if  the  pledgee  of 
])roperty  sell  it  illegally,  no  tender  of  the  amount  for  which  it 
was  pledged  is  necessary.''  "Where  a  debtor,  pursuant  to  his  con- 
tract, tenders  the  goods  to  be  received  in  payment,  he  may  hold 
them  as  a  bailee  for  the  creditor ;  *  or,  at  his  election,  as  a  debtor  ;* 
but  the  rule  does  not  apply  to  a  mere  executory  contract  to  sell ;" 
tender  of  the  premium  due  on  a  policy  of  insurance  is  equivalent 
to  payment."  Where  a  vendee,  in  an  executory  contract,  assigns 
it,  and  the  vendor  tenders  performance  to  the  assignees,  they  must 
demand  performance  of  the  vendors  and  not  alone  of  their 
assignor."     So  tender  should  be  made  to  an  assignee  if  known." 

Title  to  real  estate.  —  In  case  a  defendant,  sued  in  trespass, 
desire  to  plead  title  to  a  way,  and  a  defense  to  such  of  the  alleged 
trespasses  as  were  committed  by  traveling  it,  he  should  describe 
the  way  and  then  allege  that  as  to  so  many  and  such  of  the 

'  Anonymous,  Sir  Geo.  Cooke's  Rep.  Abb.  4G7 ;  Jones  v.    Cliff,  1  Cromp.  & 

13  (ed.  1872,  and  note) ;   Ooodtitle  v.  Mees.  540. 

Holdfast,  2  Str.  900 ;   Phillips  v.  Doo-        «  Desarts  v.  Leggett,  16  N.  Y.  582  ; 

little,  8  Mod.  345.  Campbell  v.  Uot/t,  23  Barb.  555  ;  Justi- 

^  Temple  v.  Bacchus,  cited  in  note,  son  v.  Crawford,  25  How.  4G4,  465. 
Cooke's  Rep.  13  (ed.  1872).  »  Desarts  v.  Leggett,  16  X.  Y.  582. 

^  Rocks  V.  Atease,  Cooke's  Rep.  42       '"  Campbell  v.  lIoyt,2'd  Barb.  555. 
(66,  ed.  1872).  "  Fried  v.   Royal  Ins.  Co.,  47  Barb 

*  Carman   v.    Pultz,  21    N.  Y.  547  ;  128. 
Dyckmari,  v.  Mayor,  7  Barb.  498,  5  N.       '^  Dnstan    v.   McAndrew.   10   Bosw. 

Y.  434  ;  Brinckerhoffv.  Olp.  .S5  Barb.  27.  130,  44  N.  Y.  72. 

6  Smith  V.  SmMtzer,   4  Abl).  469,    1       '^  Cook  v.  Kelly,  9  Bosw.  358,  1  Pars. 

Hilt.  287.    See  also  Stevens  v.  Hunt,  15  Cont.  346,  note  y  ;  and  see  Pearce  v. 

Barb.  17,  19.  Peltis,  47  Barb.  276  ;  Kinney  v.  Kier- 

«  Hagar  v.  King,  38  Barb.  200.  nan,  2  Lans.  492. 

'  Clarke  v.  Meigs,  22  How.  340,  13 


704  DEFEITSES.  [CH.  Y  A. 

alleged  breakings  and  entries  and  injuries  as  were  committed  while 
traveling  upon,  over  and  along  the  same  he  pleads  title.  He 
should  not  plead  title  generally,  for  if  a  trespass  be  shown  outside 
of  the  way,  plaintiff  would  recover  and  be  entitled  to  costs  even 
if  the  way  were  justified.*  In  all  cases  where  the  complaint  does 
not  definitely  describe  the  close  in  which  the  trespass  is  claimed 
to  have  been  committed,  or  defendant  claims  only  a  part  thereof, 
defendant  should  carefully  describe  the  close  he  claims,  and  plead 
title  to  only  so  much  of  the  lands  mentioned  in  the  complaint.' 

Trade-mark.  —  In  an  action  to  restrain  the  defendant  from 
imitating  plaintiff's  trade-mark,  it  is  a  good  defense  that  plaintiff, 
in  and  by  his  trade-mark,  makes  representations  which  deceive 
the  public.  But  a  defendant  who  fraudulently  imitates  the  plain- 
tiff's trade-mark  will  not  be  heard  to  raise  the  objection  that  the 
plaintiff' 's  goods  are  injurious  to  health."  It  seems  that  a  defend- 
ant may  use  the  same  trade-mark  as  the  plaintiff  for  an  entirely 
different  class  of  goods.'  A  long  delay  in  commencing  proceed- 
ings to  enjoin  an  infringement  is  a  good  reason  for  refusing  an 
injunction.' 

Trespass. — If  the  owner  of  land  erroneously  fixes  the  bound- 
ary of  lands,  he  is  estopped  from  maintaining  trespass  for  injuries 
committed  on  a  portion  of  what  he  conceded  belonged  to  defend- 
ant *  before  the  mistake  is  corrected  and  the  authority  to  enter 
thereon  revoked.*  Before  the  Code  a  defendant  might  show  he 
was  a  tenant  in  common  with  plaintiff,  or  entered  by  leave  of  a 
tenant  in  common."  Under  the  Code,  however,  leave  of  a  tenant 
in  common  should  probably  be  pleaded.  In  trespass  for  cutting 
timber  it  is  a  good  defense  that  after  an  agreement  by  the  owner 
of  the  real  estate  to  convey  to  plaintiff,  but  before  the  conveyance, 
the  owner  gave  defendant  a  license  to  cut  the  same.'' 

^  Heath  v.  Barmour,  53  Barb.  444,  was  not  p]eaded  to  all  the  real  estate  on 

35   How.  1 ;  Hall  v.  Hodskins,  30   id.  which  the  trespasses  were  committed, 

15;  Morss  v.  Jacobs,  35  id.  90;  Shall  but  only  such  were  justified  as  were 

V.  Oreen,  49  Barb.  311,  34  How.  418,  committed  within  certain  bounds. 

Yates'  PI.  593 ;  Howard  v.  Alhro,  100  '■'  Curti.'<  v.  Bryan,  36  How.  33. 

Mass.   236  ;    see   Allcman   v.  Bey,  49  ^  Amoskcrrg,  etc.,  v.  Garner,  6  Abb 

Barb.  641 ;  Little  v.  Benn,  34  How.  68,  N.  S.  265,  55  Barb.  151. 

1  Keyes,  235, 34  NT.  452  ;  and  Huddard  *  Bemy  v.  Bordioell,  9  Wend.  65. 

V.  i?ig'6v,L.  R.,  5  Q.B.  139,  which  turned  ^  Bun  ham  v.  Stuyvesant,l\  Johns, 

on  the  English  system  of  pleading  by  569  ;  Terry  v.  Chandler,  16  N.  Y.  354. 

new  assignment.     There  is  really  no  ^  Rawson  v.  Morse,  4  Pick.  127. 

conflict  between  77ea/Av.i7arw?o?/r, and  ''  Pratt  v.  Potter,  21  Barb.  589;  Tor 

Morss  V.  Jacobs.   In  the  latter  case  title  lor  v.  Robinson,  36  id.  483. 


CH.  VA.]  DEFENSES.  705 

It  has  been  held  that  trespass  would  not  lie  for  nailing  a  beard 
over  plaintiff's  premises,  thereby  disturbing  the  column  of  air 
over  it ;'  but  we  doubt  the  soundness  of  the  decision.  If  a  part 
of  pjaintiff's  premises  may  be  thus  shaded,  why  not  the  whole? 
The  quantity  of  his  land  affected  goes  to  the  amount  of  damages^ 
and  not  the  cause  of  action. 

TroTer. — One  who,  by  license  from  the  owner  of  the  soil, 
throws  out  soil  for  the  purpose  of  searching  for  minerals,  has  a 
sufficient  possession,  as  against  a  wrong-doer,  to  maintain  this 
action." 

In  an  action  for  converting  goods  bought  by  plaintiff,  but  left 
with  defendant  under  a  special  agreement,  where  the  only  proof 
of  conversion  is  a  demand  and  refusal,  defendant  may  show  that 
at  the  time  of  the  purchase  plaintiff  knew  the  goods  belonged, 
not  to  defendant,  but  to  a  third  person,  who  took  the  goods  from 
defendant  before  the  demand,  so  that  before  the  demand  they 
were  seized  by  the  sheriff  under  an  attachment  against  the  true 
owner.^  The  usual  warranty  of  title,  implied  on  a  sale  of  chat- 
tels, does  not  estop  the  ueller,  in  an  action  for  conversion,  from 
setting  up  that  he  had  been  deprived  of  their  possession  by  para- 
mount title.* 

Undertaking.  —  Where  the  complaint,  upon  an  undertaking 
given  on  obtaining  an  injunction,  alleges  that  judgment  was 
rendered  in  the  injunction  suit  in  favor  of  the  defendants  therein, 
without  stating  the  grounds  of  the  judgment,  nor  that  the  court 
decided  the  plaintiff'  therein  was  not  entitled  to  the  injunction, 
an  answer  denying  that  the  court  so  decided  or  that  the  plaintiff 
has  been  damnified,  or  that  the  defendant  is  indebted  to  him,  is 
good."  It  is  a  good  defense  to  an  action  on  an  undertaking  given 
on  behalf  of  a  defendant  in  an  attachment  suit,  in  order  to  obtain 
a  redelivery  of  property  attached,  that  the  attachment  was  set 
aside  as  not  authorized  by  the  facts  of  the  case.' 

Way.  —  AVhere  a  way  of  necessity  is  claimed  in  consequence 

'  Pickering  v.  Rudd,  4  Camp.  219 ,  '  De  Forest  v.  Baker,  1  Abb.  N.  S. 

Bee  8  Camp.,  Lives,  Ch.  J.,  169.  34,  1  Rob.  700. 

^  Northam\.  Borcden.W^xoheq.ia.  ^  Bildersee  v.   Aden,  10  Abb.  N.  S. 

^  Huntington  Y.  Douglass,  lii-oh.  204,  163,    explaining    S.   C.   on   demurrer, 

1  Abb.  N.  S.  885.                      •  8  id.  171.     The  case  in  10  Abb.  gives 

*  Huntington  v.  Thomas,  1  Rob.  204,  the  form  of  the  answer  held  good. 
1  Abb.  N.  S.  885. 

89 


706  DEFENSES.  [CH.  V  A. 

of  a  grant  tc  defendant  of  lands,  without  means  of  access  thereto, 
the  plea  should  allege  that  the  party  had,  at  the  time  of  the  tres- 
pass, no  other  way  to  the  premises  granted  to  him  by  the  plaintiff 
except  to  pass  over  the  lands  of  the  grantor.* 

Work  and  labor. —  A  merchant  who  discovers  that  his  clerk 
and  salesman  is  a  partner  in  another  concern,  and  persists  in  sell- 
ing his  employer's  goods  to  such  concern  on  credit,  contrary  to 
orders,  has  a  right  to  rescind  the  contract  and  discharge  him.  A 
principal  is  entitled  to  the  best  efforts  of  his  agent,  and  the  latter 
has  no  right  to  put  himself  in  a  position  where  their  interests 
may  conflict.'  Plaintiff  agreed  with  defendant  to  serve  him 
three  years  as  manager  of  certain  iron  works,  and  "  during  that 
time  to  use  his  best  endeavors  to  promote  the  interests  of  the 
defendant,  and  attend  to  and  carry  out  all  reasonable  requests 
made  to  him  by  defendant."  Plaintiff"  brought  suit  alleging  a 
wrongful  dismissal  by  defendant  without  any  reasonable  or  prob- 
able cause,  and  that  defendant  refused  to  pay  plaintiff  any  salary 
after  such  dismissal ;  held^  that  a  plea  that  "  the  plaintiff  did 
not,  while  he  was  in  the  defendant's  employ  under  the  agree- 
ment, use  his  best  endeavors  to  promote  the  interest  of  the 
defendant  according  to  the  agreement,  and,  therefore,  the  defend- 
ant dismissed  the  plaintiff  and  refused  to  pay  him  any  salary 
after  such  dismissal,  was  good.'  The  plaintiff  was  a  lace  buyer. 
The  defendant  hired  him  by  the  following  contract :  "  Messrs.  M 
&  ]^  agree  to  engage  Mr.  H  P  for  the  term  of  three  years  from 
Mond:iy,  the  15th  of  August,  1859,  at  the  yearly  salary  of  £500, 
payable  monthly,  Mr.  H  P  to  give  the  whole  of  his  services,  and 
to  be  advised  and  guided  by  Messrs.  M  &  IST,  if  necessary."  After 
being  engaged  in  the  purchase  of  lace  something  over  a  year,  M  & 
N  ordered  plaintiff  to  fold  some  lace,  M'hicli  he  declined  to  do, 
on  the  ground  that  he  M'as  employed  to  buy  lace  only,  and  folding 
it  was  beneath  his  position.  For  such  refusal  he  was  discharged. 
On  plaintiff  offering  evidence  to  show  that  he  was  hired  to  buy 
lace  only,  defendants  objected,  that  inasmuch  as  the  contract  of 
hiring  was  void,  unless  in  writing,  it  was  not  competent  for 
plaintiff  to  add  by  oral  evidence  a  term  not  found  in  the  written 

'  Proctor  V.  Ilodson,  10  Exclieq.  824,        «  McDonald  v.  Lord,  2  Eob.  7. 
and  see  note  at  end  of  the  case,  Jolin-        '  Lomaz  v.  Arding,  10  Esclieci.  734. 
son's  Am.  ed. 


CH.  V  A.]  DEFENSES.  707 

contract.  The  objection  was  overruled  and  the  evidence  given. 
The  court  submitted  it  to  the  jury  whether  plaintifi'  was  hired  as 
a  "  buyer "  merely,  and  whether  the  order  to  "  card  • '  the  lace 
was  such  a  reasonable  one  as  plaintiff  was  bound  to  obey.  The 
jury  found  for  the  plaintiff.     Held  correct.'] 

'  Price  V.  Mouat,  11  C.  B.  N,  S.  508, 103  Eng.  C.  L. 


[*615]  *  CHAPTER  YI. 

THE  REPLY. 

The  object  of  the  reply  under  the  Code,  as  now  amended,  is 
merely  to  controvert  and  put  in  issue  new  matter  set  up  by  way  of 
counter-claim  in  the  answer.  Any  other  new  matter  in  the  answer 
is,  for  the  purpose  of  the  trial,  considered  as  controverted,  without 
any  denial  on  the  part  of  the  plaintiff.  The  subject  of  the  reply 
will  be  considered  under  the  following  general  divisions : 

1st.  What  the  reply  must  contain,  and  how  pleaded. 

2d.    Verification  of  the  reply. 

3d.    Sham,  irrelevant  and  frivolous. 

4th.  Supplemental  reply. 

SECTION  I. 

WHAT  THE  REPLY  MUST  CONTAIN,  AND  HOW  PLEADED. 

The  Code  contains  the  following  provision  in  respect  to  the 

reply : 

"When  the  answer  contains  new  matter  constituting  a  counter- 
claim, the  plaintiff  may,  within  twenty  days,  reply  to  such 
[*616]  *new  matter,  denying  generally  or  specifically  each  allegation 
controverted  by  him,  or  any  knowledge  or  information  thereof 
sufficient  to  form  a  belief ;  and  he  may  allege  in  ordinary  and  con- 
cise language,  without  repetition,  any  new  matter,  not  inconsistent 
with  the  complaint,  constituting  a  defense  to  such  new  matter  in 
the  answer;  and  the  plaintiff  may,  in  all  cases,  demur  to  an  answer 
containing  new  matter  where,  upon  its  face,  it  does  not  constitute 
a  counter-claim  or  defense  ;  and  the  plaintiff  may  demur  to  one  or 
more  of  sucii  defenses  or  counter-claims,  and  reply  to  the  residue 
of  the  counter-claims.  And  in  other  cases,  when  an  answer  con- 
tains new  matter,  constituting  a  defense  by  way  of  avoidance,  the 
court  may,  in  its  discretion,  on  the  defendant's  motion,  require 
a  reply  to  such  new  matter;  and  in  that  case  the  reply  shall  be 
subject  to  the  same  rules  as  a  reply  to  a  counter-claim.' 

The  above  language  in  relation  to  the  denial  by  the  plaintiff  of 
the  counter-claim  is  nearly  the  same  with  that  of  section  149, 
respecting  the  denial  by  the  defendant  of  the  plaintiff's  answer ; 
it  will  be  observed  that  the  word  "  material "  is  omitted.     The 

>  Code,  §  153. 


SEC.  I.]  MATTER   OF,    HOW  PLEADED.  709 

answer  of  the  defendant,  by  section  149,  must  contain  a  denial 
of  ''each  material  allegation,"  etc.  The  omission,  however,  is 
unimportant ;  the  intention  manifestly  being  to  require  nothing 
further  by  way  of  denial  from  the  plaintiff  in  his  reply,  than 
from  the  defendant  in  his  answer.*  This  is  the  more  apparent 
from  the  fact  that,  by  section  168,  it  is  only  "  every  material 
allegation  of  new  matter  in  the  answer  constituting  a  counter- 
claim," not  controverted,  w-hich  is  to  be  taken  as  true.  It  is  not 
necessary,  therefore,  for  a  party  in  his  reply,  any  more  than  in  an 
answer,  to  controvert,  or  to  confess  and  avoid,  au  immaterial 
allegation  in  the  answer,  no  matter  under  what  form  of 
[*617]  irrelevant  or  redundant  ^matter  it  may  appear,  whether 
as  a  conclusion  of  law,  or  matters  of  mere  evidence,  or 
other  matters  of  surplusage. 

The  section  above  quoted  has  been  amended  at  almost  every 
session  of  the  legislature  since  the  Code  at  which  amendments 
have  been  made.  Under  the  original  Code,  the  reply  was  made 
to  contain  a  particular  denial  of  each  allegation  of  the  answer 
controverted  by  the  plaintiff,  or  of  any  knowledge  thereof  suffi- 
cient to  form  a  belief;  and  also  "any  new  matter,  not  inconsist- 
ent with  the  complaint,"  in  avoidance  of  the  answer.'  No 
demurrer  was  permitted  to  the  reply.  The  amendment  of  1849 
retained  this  language,  but  permitted  the  plaintiff  to  reply  "gen- 
erally or  particularly,"  and  allowed  a  demurrer  to  the  reply  for 
«  insufficiency:'  It  also  permitted  the  plaintiff  to  demur  to  one 
or  more  defenses  and  answer  the  residue.' 

This  was  amended  in  1851,  by  requirmg  a  sfpecifiG  denial  to 
each  allegation  of  new  matter,  constituting  a  defense  or  set-off ; 
and  authorizing  the  plaintiff  to  allege  in  his  complaint  "  any  new 
matter,  not  inconsistent  with  the  complaint,  constituting  a  defense 
to  such  new  matter  in  the  answer."  *  The  section,  as  amended 
in  1852,  restored  the  general  denial  and  limited  the  reply  to  such 
new  matter  as  constitutes  a  counter-claim,  that  word  being  sub- 
stituted for  the  terra  "  set-off ; "  and  in  this  respect  it  is  not 
P618]  altered  by  *the  amendment'  of  the  section  as  above 
quoted. 

'  7  L  0  240.  "  Code  of  1851,  §  153. 

"  Original  Code.  §  131.  *  Laws  of  1855. 

8  Code  of  1849,  gs^  15;5  and  155. 


710  EEPLT.  [CH.  VI. 

The  use  of  the  reply  in  pleading,  it  will  be  observed,  has  been 
very  much  restricted  by  the  late  amendments.  Heretofore  it  was 
necessary,  not  only  to  take  issue  upon  every  material  fact  alleged  by 
way  of  defense  in  the  answer,  but  also  to  set  up  specifically  such 
new  matter  as  the  defendant  intended  to  rely  upon  in  avoidance 
of  the  answer.  Thus,  in  Walrod  v.  Bennett^  the  defendant 
answered  that  the  plaintiffs  who  brought  the 'suit  jointly  were 
not  the  joint  owners  of  the  property.  This  averment  was  held 
new  matter  requiring  a  reply ;  and,  if  not  specifically  contro- 
verted, was  to  be  regarded  as  admitted  on  the  trial.  In  that  case 
it  was  held,  that  not  only  was  no  evidence  required  to  establish 
the  fact,  but  evidence  to  contradict  it  was  inadmissible.  All  this 
is  changed  under  the  present  amendments.  Such  an  answer, 
and  indeed  any  answer  setting  up  new  matter  not  constituting  a 
counter-claim,  is  deemed  to  be  controverted,  precisely  the  same  as 
though  the  plaintiff  had  put  in  a  reply  traversing  the  allegations. 
In  the  former  edition  of  this  work,  and  before  any  decisions  to 
the  contrary  had  been  made,  I  endeavored  to  show  that,  nc>t with- 
standing the  language  of  the  Code  appeared  to  do  away  entirely 

with  the  necessity  of  a  reply,  in  any  case,  to  new  matter 
[*619]  not  constituting  a  counter-claim,  and  to  permit  *the  adverse 

party,  on  the  trial,  to  controvert  such  new  matter,  or  to 
avoid  it  by  any  competent  testimony  which  he  may  have,  and  by 
the  proof  of  any  matters  which  would  be  a  proper  reply  to  such 
allegations,  yet  that,  inasmuch  as  there  was  notliing  in  the  Code 
2ki's>(AvX^'^  forbidding  such  a  reply,  it  might  be  allowable^  and  in 

some  cases  proper,  if  not  absolutely  necessary.'^  I  have 
[*620]  been  corrected,  *  however,  on  this  point  by  subsequent 

decisions,  the  great  majority  of  which  seem  to  hold  that 

a  reply  to  new  matter  not  constituting  a  counter-claim  is  a 
[*621]  *  pleading  not  authorized  by  the  Code,  and  that  the  courts 

will  not  permit  such  a  pleading  to  be  interposed  or  placed 
upon  the  record  for  any  purpose.* 

1  6  Barb.  S.  C.  144. 

*  I  take  the  liberty  of  inserting  here  the  following  extract  from  the  text  of  the  former 
edition,  containing  the  reasons  upon  which  the  opinion  was  founded  —  Irrespective  of 
any  judicial  decision  to  the  contrary  —  why  such  reply  might  be  considered  allowable 
and  proper. 

The  language  of  the  Code  Is,  that  the  defendant  may  allege  "  any  new  matter  not 


SEC.  I.]  MATTER   OF,    IIOW   PLEADED  711 

[*622]  It  was  said,  indeed,  by  Justice  Bakculo,  in  lioscoe  v. 
Maison^  that  a  plaintili"  having  elected  to  reply  could 
not,  on  a  question  of  verification,  deny  that  he  was  bound  to 
reply,  thus  recognizing,  indirectly  at  least,  the  right  of  a  plaintiff, 
if  he  were  so  advised,  to  put  in  a  reply,  though  not  bound  to  do 
so.  But  subsequent  decisions  have  not  sustained  this  view  of  the 
question.     Thus,  in  Silliman  v.  Eddij^  it  was  held  by  Justice 

1  7  How.  Pr.  131.  ^  8  How.  Pr.  123. 


inconsistent  witbi  tiie  complaint  constituting  a  defense  to  suchi  new  matter  in  the 
answer."  It  is  said,  no  doubt  witli  entire  accuracy,  that  the  term  "such  new  matter" 
relates  to  the  first  clause  of  the  section,  namely,  new  matter  constituting  a  counter- 
claim. Granting  this  to  be  so,  still  there  does  not  appear  to  be  any  thing  in  the  Code 
to  prohibit  such  a  reply,  and  a  variety  of  cases  might  be  very  readily  mentioned  in 
which  it  would  be  manifestly  proper.  Thus,  for  example,  take  the  case  provided  for 
by  statute,*  where  a  defendant  pleads  a  discharge  under  the  United  States  bankrupt 
law,  in  which  case,  under  the  old  practice,  the  plaintiff  might  generally  reply  that  such 
discharge  was  obtained  by  fraud,  and  give  notice  specifying  the  acts  of  fraud  on  which 
he  relied  to  sustain  his  case.  Would  not  a  reply,  in  such  a.case,  be  allowable?  Even 
if  not  strictly  within  the  letter  of  the  Code,  how  could  a  defendant  take  advantage  of 
it?  The  only  way  it  could  be  reached  would  be  by  motion  to  strike  out  such  matter  as 
irrelevant  or  redundant  matter;  but  this  is  done  only  on  motion  of  a  pei-son 
"aggrieved  ;"  and  in  such  case,  instead  of  being  aggrieved,  it  appears  on  the  face  of 
the  papers  that  the  defendant  is  actually  benefited  by  being  thus  apprised  of  the  very 
point  on  which  the  plaintilf  relies  to  avoid  the  efiects  of  the  discharge. 

An  answer  of  infancy  is  a  similar  case.  The  reply  sets  up  that  the  goods  furnished 
were  necessaries,  or  sets  up  a  new  promise  by  the  infant  on  arriving  at  full  age ;  there 
seems  no  sufficient  reason  for  striking  out  such  a  reply  as  irrelevant  or  redundant 
matter;  but  in  such  a  case,  perhaps,  the  court  might  hold  the  plaintiff  strictly  to  the 
matter  set  up,  and  not  suffer  him  to  avoid  the  defense  in  any  other  manner,  par- 
ticularly if  it  appeared  that  the  defendant  had  been  misled  by  it  in  preparing  for  the 
trial.  Many  other  cases  might  be  cited  by  way  of  illustration,  but  the  above  will  be 
sufficient. 

I  conclude,  therefore,  that  by  the  rules  of  pleading  under  the  Code,  the  reply  may 
contain,  instead  of  a  general  denial  of  the  allegations  in  the  answer,  whether  relating 
to  a  counter-claim  or  not,  an  admission  thereof,  and  any  new  and  sutficient  matter  in 
avoidance  not  inconsistent  with  the  complaint.  This  opinion  is  confirmed  by  the  fact 
that  the  amended  Code  of  1853  retains  section  155  as  it  stood  before,  providing  that  if 
the  reuly  of  the  plaintiff  to  any  defense  set  up  by  the  answer  of  the  defendant  be 
insufficient,  the  defendant  may  demur  thereto. 

If  it  be  admitted  that  such  a  reply  is  proper  and  allowable,  I  am  not  prepared  to  say 
but  it  might,  in  some  cases,  be  actually  necessary,  in  order,  as  in  the  case  of  bank- 
ruptcy above  alluded  to,  to  authorize  the  plaintiff  to  give  the  evidence  on  which  he 
relies  to  invalidate  or  avoid  the  effects  of  the  defense.  The  Code  provides  that  the 
"  allegation  of  new  matter  in  the  answer,  not  relating  to  a  counter-claim,  or  of  new 
matter  in  a  reply,  is  to  be  deemed  controverted  by  the  adverse  party,  as  upon  a  direct 
der  lal  or  avoidance,  as  the  case  may  require  ;  "  that  Is,  so  far  as  the  pleadings  are  to  be 
received  as  evidence  in  the  action  on  the  trial  thereof.  The  allegations  in  the  answer 
are  to  be  deemed  controverted;  i.  e.,  the  plaintiff  denies  them  to  be  true,  and  throws 
upon  the  defendant  the  burden  of  the  proof.  Undoubtedly,  the  plaintiff  will  then  be 
allowed  to  offer  evidence  to  disprove  the  defense,  the  same  as  may  be  done  under  any 

*  Session  Laws,  1846,  p.  305. 


712  EEPLY.  [CH.  YI. 

Crippen  that  a  reply  is  entirely  unnecessary  except  to  a  counter- 
claim, and  can  have  no  legal  bearing  upon  the  rights  and  obliga- 
tions of  the  respective  parties  existing  under  the  previous 
pleadings.  In  that  case,  however,  the  court  refused  to  set  aside  the 
reply  for  the  irregularity  of  omitting  to  verify  it,  and  it  was  suf- 
fered to  remain  upon  the  record,  notwithstanding  it  could  not  be 


other  issue.  But  under  such  a  general  traverse,  may  the  plaintiff.  In  all  cases,  if  the 
defense  relied  on  be  established,  be  permitted  to  prove  a  distinct  matter  in  avoid- 
ance of  the  defense  without  setting  it  up  and  apprising  the  defendant  of  the  nature 
thereof. 

It  is  not  quite  clear  what  is  meant  by  the  expression,  "  coiitroverted,  as  upon  a  direct 
denial  or  avoidance."  The  term  controverted,  as  used  elsewhere  in  the  Code,  it  seems, 
means  a  mere  denial  or  traverse  ;*  the  term  avoidance  implies  an  admission  of  the  fact, 
and  the  two  appear  to  be  in  some  degree  incompatible.  We  can  readily  understand 
how  an  allegation  may  be  deemed  controverted  as  upon  a  denial,  but  not  how  it  may 
be  deemed  controverted  as  iqyon  an  avoidance.  Matter  pleaded  in  avoidance  of  a  cause 
of  action  or  defense  does  not  in  this  sense  controvert,  that  is,  traverse,  or  deny,  the 
cause  of  action  or  defense.  If,  therefore,  the  term  controverted  is  to  be  regarded  as 
the  controlling  word  of  the  sentence,  then  section  168  may  be  construed  merely  as 
limiting  the  effect  of  the  pleading  as  evidence  in  a  cause,  and  Bot  as  conferring 
on  the  plaintiff  the  right  of  rebutting  a  defense  by  evidence,  going  merely  in  avoid- 
ance, in  the  same  manner  as  though  suoh  rebutting  matter  had  been  specially  set 
up  by  a  reply.  The  language  of  the  section  is,  at  all  events,  fairly  open  to  this  criti- 
cism; and  though,  perhaps,  the  framers  of  the  Code  (or  of  the  amendments)  may 
have  intended  to  admit  any  reply  in  evidence  to  such  new  matter  without  being 
pleaded,  yet  it  is  for  the  courts,  in  their  discretion,  to  say  whether  it  should  be  so 
construed  or  not. 

(If  a  reply  is,  under  no  circumstances,  allowable,  the  consequence  is  that,  in  a 
certain  class  of  cases,  the  real  and  substantial  issue  to  be  tried  is  not  raised  upon  tlie 
face  of  the  pleadings.  This  is  a  glaring  and  manifest  defect,  and  absolutely  inconsist- 
ent with  any  logical  system  of  pleadings.  Take  the  following,  by  no  means  an  extreme 
case,  for  an  example  : 

A  defendant  sets  up,  by  way  of  answer,  the  statute  of  limitations  in  an  action  on 
contract.  No  reply  is  put  in.  The  defense  is  not  to  be  taken  as  true,  but  is  deemed 
e(jntroverted  by  the  plaintiff,  and  the  defendant  must  strictly  prove  it.  Suppose  the 
plaintiff  rely  on  a  new  promise  to  take  the  case  out  of  the  statute.  The  new  promise, 
it  has  been  lately  held  in  this  State,  is  the  substantial  ground  of  the  action.  May  the 
plaintiff  give  it  in  evidence  without  setting  it  up  in  his  reply?  In  other  words,  may 
he  prove  his  real  cause  of  action  without  stating  it  anywhere  in  his  pleadings?  He 
fully  admits  the  fact  alleged  in  the  answer,  that  the  cause  of  action  did  not  accrue 
within  six  years  next  before  the  commencement  of  the  action,  and  therefore,  but  for  a 
new  fact,  which  has  given  him  a  new  cause  of  action,  is  fully  discharged.  Why,  if 
pleadings  are  intended  to  present  the  issue  to  be  tried,  should  not  this  new  fact  be  set 
up  in  the  reply?  Even  though  the  construction  be  correct,  that  the  Code  does  not 
absolutely  demand  it  in  order  to  let  in  the  evidence,  would  not  the  safer  and  more 
prudent  course  be.  In  all  such  cases,  to  allow  this  new  fact  to  be  pleaded,  and  thus 
apprise  the  opposite  party  of  the  real  cause  of  action?  for  a  judge  might  well  hesitate 
to  admit  such  evidence  (if  duly  objected  to),  on  the  ground  that  the  defendant  was,  at 
least,  entitled  to  be  apprised  of  the  real  cause  of  action  in  order  to  be  prepared  to 
meet  it.  The  same  would  be  true  if  the  plaintiff  relied  on  a  new  promise,  in  casoa 
Where  infancy  W£is  pleaded,  bankrupt  discharge,  etc.,  etc. 

»  Code,  g  149. 


8EC.  I.]  MATTER   OF,    HOW   PLEADED.  713 

made  available  for  any  purpose.'     But  a  still  more  strict  view  of 
the  subject  has  been  taken  in  several  other  cases,  and  replies  to 
new  matter,  not  constituting  a  counter-claim,  have  been  repeatedly 
struck  out  from  the  record  as  irrelevant,  or  set  aside  as  un- 
[*623]  authorized  pleadings  and  mere  *nullities,  as  in  the  cases 
of  Putnam  v.  Deforest,^  Simpson  et  al.  v.  Loft  et  al.^  Wil- 
liams  V.  Upton.*     It  would  seem,  then,  from  the  general  course 
of  the  decisions,  that  a  reply  to  matter  not  constituting  a  coun- 
ter-claim is  not  authorized,  and  that  a  defendant  has  strictly  a 
right  to  object  to  having  such  an  incumbrance  on  the  record ;  or, 
perhaps,  it  may  be  more  correctly  stated  that  the  court  has  dis- 
cretionary power  to  expunge  such  a  pleading  from  the  record. 
The  objection  should  be  by  motion  to  strike  out  or  set  aside  the 
pleading,  on  the  ground  of  irregularity,  that  being  the  general 
mode  of  presenting  the  question  to  the  comt  where  a  pleading 
is  unauthorized,  and  no  specific  mode  of  bringing  up  the  question 
has  been  provided.'     [It  has  been  held,  under  the  clause  allowing 
the  court,  on  motion,  to  require  a  reply  where  an  answer  contains 
new  matter  constituting  a  defense  by  way  of  avoidance,  that  the 
statute  of  limitations  presents  a  proper  case  for  so  doing  ;*  but  a 
justification  of  the  truth  of  a  libel  or  slander  does  not.']     In  the 
further  examination  of  the  subject,  our  remarks  will  be  considered 
as  applying  entirely  to  the  reply  to  matters  strictly  constituting 
counter-claims;  and  in  this  aspect  the  subject  naturally  divides 
itself   into   two   heads:    1st.  The  traverse   or   denial;    2d.   The 
statement  of  new  matter  in  the  reply. 

1st.  The  traverse  or  denial.  —  The  plaintiffs  reply  is  required 
by  the  Code  to  deny  "  generally  or  specifically  each  allegation  con- 
troverted by  him,  or  any  knowledge  or  information  thereof 
[*624]  sufficient  to  *form  a  belief"  The  language,  as  has  just  been 
observed,'  is  similar  to  that  used  Math  respect  to  the  answer 

1  "  The     party,'      says     the     court,        ^  8  How.  Pr.  234. 
"  neither  gains  nor  loses  any  thing  by         *8    How.    Pr.    205    {Devlin   v.    Be- 

the  reply,  except  he  very  unnecessarily  vins,  23  How.  290J. 
informs  his  adversary  of  matters  re-         ^Robinson  v.  Judd,  9  How.  Pr.  d<8; 

lied  upon  to  meet  and  overthrow  the  see  also  Simpson  et  al.  v.  Loft  et  al.,  8 

defense  set  up  in*  the  answer.     This  id.  2-ii.  x^   o  i 

cannot  be  regarded  as  good  ground  of         «  Ilvbbell  v.  Fowler,  1  Abb.  IS.  b.l. 
complaint  on  the  part  of  the  defend-        '  Maretzek  v.  Caldwell,  19  Abb.  d5 ;  S 

But."  I'ob.  715. 

*  8  How.  Pr.  146,  *  Ante,  page  616,  mnrg.  pp. 

90 


714  EEPLY.  [CH.  VI. 

to  tlie  complaint.  The  use  of  the  traverse  or  denial  in  the  replj  is, 
therefore,  precisely  similar  to  its  use  in  the  answer,  and  for  a  very 
manifest  reason.  The  counter-claim,  as  we  have  seen,  is  in  the 
nature  of  a  cross-action.  It  is  a  statement  of  an  independent 
claim,  demand,  or  cause  of  action  on  the  part  of  the  defendant 
against  the  plaintiff  in  the  same  suit,  instead  of  di-iving  him  to 
bring  a  separate  suit  for  such  demand.  And,  therefore,  the 
counter-claim  is  required,  as  was  noticed  on  a  previous  page,*  to  be 
stated  in  the  answer  substantially  according  to  the  rules  which 
govern  the  statement  of  an  original  cause  of  action.  It  follows, 
then,  that  the  reply  is  neither  more  nor  less  than  an  answer  to 
this  cause  of  action,  set  up  by  the  defendant  in.  hostility  or 
opposition  to  the  plaintiff's  demand.  In  this  view  of  the  case  it  is 
of  course  unnecessary  to  enter  upon  any  consideration  of  w^hat  the 
general  and  special  traverse  or  denial  of  the  reply  must  be.  The 
remarks  made  in  a  former  part  of  this  work  on  that  subject,  in 
reference  to  the  defendant's  answer,  are  considered  to  be  fully 
applicable  to  the  plaintiff's  reply.*  The  same  rules  which  govern 
and  test  the  sufficiency  of  the  general  or  specific  denial  of  the 
answer  to  the  plaintiff's  complaint,  govern,  also,  and  test 
[*625]  the  ^sufficiency  of  such  denial  by  the  plaintiff  in  his  answer 
to  the  defendant's  counter-claim. 

If  the  plaintiff  fails  to  reply,  the  defendant  may  move  for  judg- 
ment, as  for  want  of  an  answer ; '  but  not,  it  seems,  if  there  is 
another  issue  of  fact  remaining  undisposed  of,  that  is,  such  an 
issue  as,  if  found  in  favor  of  the  plaintiff,  would  be  decisive  of 
the  cause.*  Where  a  plaintiff  has  already  put  in  a  reply  to 
an  answer,  which  contains  also  on  the  same  paper  a  demurrer, 
and  the  defendant  subsequently  serves  the  same  answer  without 
the  demurrer,  this  is  not  an  amended  answer  requiring  a  new 
reply.* 

So,  too,  in  ease  a  reply  has  been  put  in  to  an  answer  not  verified, 
and  the  defendant  subsequently  serves  the  same  answer  verified, 
this  is  not  an  amended  answer,  and  the  plaintiff  need  not  reply 

'  Ante,  pages  579-584,  marg.  pp.  *  Comstock  v.  Ualloek,  1  Code  R.  N. 

'  Ante,  pages  405-450,  marg.  pp.  S.  200. 

*  Code,  §  154,  Pardee  v.  Schenck,  11  ^  Howard  v.  Michigan  Southern  B. 

How.  500 ;  Lemon  v.  2'ruU,  13  id.  248 ;  B.  Co.,  5   How.   Pr.  207 ;  3  Code  R. 

afErmed  16  id.  576  ;  Bridge  v.  Payson,  215. 
5  Sandf.  210. 


SEC.  I.]  MATTER   OF,    HOW   PLEADED.  715 

to  the  same  under  oath,  the  verification  being  no  part  of  the 
pleading.  But  a  supplemental  answer  requires  a  reply  it  it  set 
up  matter  by  way  of  counter-claim. 

The  denial  in  the  plaintiff's  reply,  it  will  be  seen,  may  be 
general  or  specific.     If  the  answer  is  verified,  the  defendant  has 
aright  tohavea  rgply  in  proper /o.m  from  the  plaintiff,  also 
verffied      If  the  plaintiff,  therefore,  adopts  the  general  form  ot 
denial,  it  will  not  be  sufiicient  for  him  to  say  that  he  denies  the 
defendant's  answer  in  manner  and  form,  etc. ;   that  is,  that  he 
denies  it  as  a  whole.     The  denial  should  be  the  same  as 
r^=-6261  the  general  denial   by  defendant  *in   his   answer.     He 
must  deny  ^^  each  allegation  "  set  forth  in  the  answer  by 
way  of  counter-claim;  so  that,  if  one  material  allegation  ot  such 
answer  be  true,  the  plaintiff  cannot  use  this  general  form  of 
denial,  because  he  will  not  be  able  to  verify  its  truth 

New  matter  in  the  ^.^^^y.- Besides  the  general  or  specific 
denial  of  new  matter  in  the  answer  constituting  a  counter-claim, 
the  plaintiff,  in  his  reply,  may  "  allege,  in  ordinary  and  concue 
language,  without  re^emon,  any   new  matter  not  ^ncon8^stent  ■ 
M  the  complaint,  constiMting  a  defense  to  such  new  matter  ^n 
the  answerr     That  is  to  say,  he  must  allege  it  if  he  expects  it  to 
form  part  of  the  subject-matter  in  issue,  or  to  be  allowed  to  prove 
it  on  the  trial.     [He  cannot  avail  himself  of  the  statute  ot  limita- 
tions without  pleading  it.']     The  reader  is  referred  to  what  was 
said,  in  a  former  chapter,^  relative  to  admitting  defenses  under  a 
general  or  specific  denial  without  setting  them  up  as  new  matter ; 
and  it  is  scarcely  necessary  to  repeat  here  that  those  remarks  are 
entirely  applicable  to  the  reply.     Thus,  suppose  the  defendant, 
by  way  of  counter-claim,  should  set  up  an  ofi-set,  as,  for  example 
a  matter  of  account,  a  promissory  note,  or  any  f;^-  dem.md 
arising  on  contract.     This  matter  must  be  stated  substantially  the 
same  as  though  embraced  in  a  complaint  in  an  ongma    action 
aud  the  repV  may  traverse,  or  confess  and  avoid  it  m  the  same 
way  ;  and  the  plaintiff,  under  a  general  or  specific  den  al, 
r-6271  may  give  in  evidence  any  thing  going  *  to  disprove  the 
plaintiff's  cause  of  action  within  the  limitations,  and  m 

>  Cna,vel  V.  Burston,  1   Cromp.  &        '  Ante     pp.   400-404.    453,   et    se,. 
Jerris,  1 ;  Clinton  v.  Eddij,  1  Lans.  61.    marg.  pp. 


716  EEPLT.  [CH.  VI. 

the  same  manner  as  the  defendant  might  do  under  a  denial  of  the 
plaintiff's  complaint. 

What  must  and  what  must  not  be  alleged  as  new  matter  in  the 
reply  to  a  counter-claim  —  what  may  and  what  need  not  be 
alleged  —  have  been  sufficiently  considered  under  their  respective 
heads  in  the  chapter  treating  of  the  answer,  to  which  the  reader 
is  referred.' 

It  has  been  thought,  however,  that  a  reply  in  the  nature  of  a 
set-off,  to  a  defense  of  set-off  by  way  of  counter-claim,  would  not 
come  under  the  general  rule.  Prior  to  the  Code,  the  plaintiff 
was  not  authorized  to  reply  a  set-off"  to  a  plea  of  set-off.  The 
present  system,  as  has  been  already  observed,  takes  notice  of 
equitable  set-offs  and  defenses  as  well  as  legal. '  Under  our 
Revised  Statutes  the  equity  practice  was,  as  stated  by  the  chan- 
cellor, in  Chapman  v.  Robertson^  to  allow  the  defendant  to  liti- 
gate his  set-off  in  the  same  suit  and  not  drive  him  ':©  a  cross-bill: 
"  The  set-off  may  be  litigated  and  determined  upon  a  general 
replication  to  the  defendant's  answer  in  this  court  as  well  as 
upon  a  notice  annexed  to  the  plea  of  the  defendant  in  a  suit  at 
law.  The  statement  of  the  set-off  in  the  answer  is  a  substitute 
for  the  notice  annexed  to  the  plea.  And  upon  a  general  replica- 
tion to  the  answer,  the  complainant  may  introduce  any  evidence 
which  is  relevant  and  proper,  for  the  purpose  of  showing 
[*628]  that  the  demand  ^claimed  as  a  set-off  is  not  legally  or 
equitably  due,  or  that  for  any  other  reason  it  should  not 
be  allowed.  The  defendant,  on  the  other  hand,  may  introduce 
proofs  to  rebut  any  special  defense  to  his  claim  of  off-set  which 
the  complainant  may  attempt  to  establish.^'  This  was  under  the 
equity  practice,  in  which  there  was  nothing  which  corresponded 
exactly  to  the  reply  allowed  by  the  Code  ;  for  the  chancery  repli- 
cation was  a  mere  formal  and  general  denial  of  the  truth  of  the 
defendant's  plea  or  answer,  and  of  the  sufficiency  of  the  matter 
alleged  in  it  to  bar  the  plaintiff's  suit,  and  an  assertion  of  the 
truth  and  sufficiency  of  the  bill ; '  and  special  rephcations  were 
not,  in  modern  times,  admitted  in  practice.  But  the  defense  of 
a  counter-claim,  as  we  have  seen,  includes  not  only  set-offs  and 

'  Ante,  ch.  5.  ^  3.  '  Coop.  Eq.  PI.  339  ;  Lube's  Eq.  PI , 

8  6  Paige's  Ch.  627.  276. 


SEC.  I.j  MATTER   OF,    HOW   PLEADED.  717 

matters  in  recoupment  of  damages,  but  also,  generally,  most  of 
those  matters  which  might  have  been  interposed  as  equitable 
defenses  by  cross-bill ;  and  the  practice  in  chancery  pleading  was 
for  the  defendant  to  plead  to  or  answer  a  cross-bill  as  he  did  to 
an  original  bill'  The  reply  of  the  Code  is,  therefore,  I  appre- 
hend, entirely  analogous  to  the  answer  to  a  cross-bill  in  equity. 
Now,  if  the  defendant  had  sought  to  enforce  a  set-off  by  cross- 
bill in  equity,  as  he  might  have  done,  instead  of  interposing  it 

directly  in  the  original  suit,  the  plaintifl',  of  course,  might 
[*629]  have  answered  any  other  facts  constituting  a  defense  *or 

equitable  set-off  to  such  cross-claim.  This  he  may  now  do 
by  reply  under  the  Code.'  The  following  extract  from  the  opinion 
of  Justice  Makvin,  in  3filler  v.  Losee,  doubtless  indicates  the 
correct  practice  in  this  respect : 

"  By  the  present  Code,  the  defendant  is  authorized  to  insert 
in  his  answer  new  matters  not  before  allowed.  He  may  state 
any  cause  of  action  arising  upon  contract.  It  is  called  counter- 
claim, and,  by  section  153,  the  plaintiff  may  reply  to  such  new 
matter,  and  allege  any  new  matter  constituting  a  defense  to  such 
new  matter  in  the  answer.  Here  we  have  the  word  defense 
again.  It  is  clear  to  my  mind  that  when  the  defendant,  in  his 
answer,  sets  forth  a  cause  of  action  arising  upon  contract,  other 
than  that  which  constitutes  a  set-off,  the  plaintiff  may  reply  any 
facts  which  would  have  constituted  a  defense,  had  the  defendant 
sued  the  plaintiff  for  such  cause  of  action ;  and  the  only  serious 
question  that  can  be  made  is,  whether  he  may  reply  a  set-off  to 
the  set-off  stated  in  the  answer.  Assuming  that  he  was  not  by 
statute,  prior  to  the  Code,  permitted  to  do  so,  still  I  think  that 
the  Code  now  authorizes  it.  If  the  plaintiff,  as  in  this  case, 
brings  his  action  upon  a  note,  and  the  defendant  states  a  cause 
of  action  constituting  a  set-off,  and  the  plaintiff  has  another 
cause  of  action  which  w^ould  constitute  a  set-off  to  the  defend- 

'2  Barb  Ch  Pr  132  133.  and  did  not  affect  the  authority  of  jTwr  ■ 

«  mUer'v.  Losee,  9  How.   Pr.   356;  ner  v.  Simpson,  and  Reilhj  v    Rucker 

Beilly  v.  Rucker,  16  Ind.  803  •,  Turner  upon  tliis  point.     Stercart  y   Iram8,W 

V    Simpson,  12  id.  413 ;  H'M  v.  Rtdl,  How.   148,  did  not   really   decide   the 

30  How.  51;   White  v.  Joy,  13  ^.  Y.  80,  question.     Mr.  Waterman  in  his  work 

was  under  the  Code  of  1849.  The  case  of  on  set-off  (649,  650  1st  ed.),  cites  only 

McAvoy  V.  Wright,  25  Ind.  23.  29,  pro-  cases  decided  under  the  common-law 

ceeded  upon  the  theory  that  the  reply  system  of  pleading, 
was  a  departure  from  the  complaint. 


718  EEPLY.  [CH.  VI. 

P630]  ant's  claim,  liad  the  defendant  *broiiglit  an  action  upon 
the  claim  he  has  set  ofi",  I  think  the  plaintiff  may  reply 
his  other  cause  of  action  as  a  set-off  and  defense  to  the  defend- 
ant's set-off;  and  that,  in  contemplation  of  section  153,  it  will 
constitute  a  defense  to  the  new  matter  in  the  answer.* 

In  respect  to  irrelevant  and  redundant  matter  in  the  reply,  and 
when  in  what  cases  it  will  be  struck  out  on  motion,  the  rules  are 
entirely  similar  to  those  which  govern  the  answer.  In  giving 
proper  effect  to  the  word  "  aggrieved,"  in  the  section  relative  to 
this  subject,  it. is  presumed  that,  in  respect  to  the  reply, 
[*631]  as  to  matters  in  avoidance  in  the  answer,  "^which  require  no 
traverse,  a  more  liberal  rule  will  be  adopted  than  in  regard 
to  the  complaint ;  that  is  to  say,  should  the  reply  set  up  matters 
material  in  proof  to  the  issue,  and  which,  if  proved,  will  bar  the 
defendant's  defense,  if  these  matters  be  well  stated  according  to 
the  rules  of  pleading  of  the  Code,  they  should  not  be  considered 
irrelevant  or  redundant,  even  though  not  strictly  required  to  be 
set  up  by  the  Code.  It  will  not,  in  such  case,  be  sufficient  for 
the  party  who  moves  to  strike  out  such  matters  merely  to  say 
tliat  he  may  be  aggrieved.  He  is  not  required  to  controvert 
them  by  any  other  pleading  on  his  part,  and  he  should,  at  least, 
be  able  to  satisfy  the  court  how  or  in  what  manner  he  may  be 
aggrieved ;  if  that  fact  is  not  apparent  on  the  face  of  the  papers, 
it  should  be  made  to  appear  by  evidence  aliunde. 

*  A  somewhat  different  view  is  tal^en  in  the  recent  case  of  Stewart  v.  Travis  et  al. 
(10  How.  Pr.  148),  by  Justice  Hand,  who  considers  that  though  the  word  "defense,"  in 
sections  149  and  153,  was  intended  to  be  used  in  a  popular  sense,  and  thus  might  in- 
clude a  set-off  to  a  set-off  pleaded  to  the  answer,  if  that  ever  was  admissible,  yet,  "it 
does  not  follow  that  such  a  replication  is  necessary,  or  even  proper,  especially  where 
the  claims  set  up  in  the  complaint  and  plea  of  set-off  are  pleaded  iti  a  general  way,  and 
not  confined  to  some  specific  instrument  or  claim."  The  principle  was  assimilated  to 
the  common-law  plea  of  payment  in  assumpsit  (which  has  been  held  to  apply  to  the 
specific  debt  which  the  plaintiff  seeks  to  recover),  and  the  plaintiff  replied,  by  way  of 
new  assignment,  that  he  did  not  sue  on  the  promise  met  by  the  plea.  In  such  case, 
the  issue  was  held  to  be,  whether  there  had  been  a  second  debt,  or  whether  there  had 
been  two  debts.  Hall  v.  MiddleUm,  4  A.  and  E.  107.  The  question  as  to  allowing  a 
reply  of  set-off  to  an  answer  of  set-off,  however,  does  not  seem  to  have  been  directly 
adjudged  in  this  case,  the  decision  being  put  mainly  upon  the  ground  that  the  party 
had  mistaken  his  remedy  in  moving  to  strike  out,  instead  of  demurring  to,  the 
matter  thus  pleaded.  Be  this  as  it  may,  I  see  no  good  reason  for  testing  the  sufficiency 
of  a  reply  in  such  cases  by  the  strict  rules  which  governed  the  framing  of  a  comraon- 
li^w  issue.  From  the  consideration  stated  In  the  text,  it  seems  to  me  clear  that  the 
reply  of  the  Code  is  entirely  analogous  to  the  equity  answer  to  a  cross-bill,  and  not  to 
a  common-law  replication. 


SEC.  I.]  MATTER   OF,    HOW   PLEADED.  719 

TJie  reply  must  he  consistent  with  complaint,  —  This  rule,  it 
will  be  perceived,  is  applicable  to  the  reply  alone,  and  can  have 
no  reference  to  the  answer.  Under  the  old  system  of  pleading,  it 
was  a  settled  rule  that  the  replication  must  not  depart  from  the 
declaration  in  any  material  matter,  and  the  rule  affected  equally 
rejoinders  and  all  subsequent  pleadings.*  A  departure  in  plead- 
ing was  said  to  be  when  a  party  quits  or  departs  from  the  case  or 
defense  which  he  has  first  made  and  has  recourse  to  another ;"  as 
in  assumpsit  by  an  executor  on  several  promises  which  were  all 
said  to  have  been  *made  to  the  testator,  to  which  the  de- 
[■^'632]  fendant  pleaded  the  statute  of  limitations,  and  the  plain- 
tiff replied  a  subsequent  promise  to  himself ;  the  replica- 
tion was  held  to  be  a  departure,  and  therefore  bad.'  A  departure 
in  pleading  was  matter  of  substance,  and  to  be  taken  advantage 
of  by  general  demurrer.* 

Under  the  Code,  as  under  the  old  practice,  the  plaintiff  is  not 
permitted  to  quit  or  depart  from  the  case  made  by  him  in  his 
complaint.  The  reply  may  allege  new  matter  "  not  inconsistent 
with  the.  complaint."  It  is  to  be  observed,  however,  that  matter 
which  maintains  and  fortifies  the  declaration  was  not  a  departure ; 
nor  W'Ould  such  matter  be  "  inconsistent,"  under  the  Code.  Thus, 
in  trespass  for  an  assault  at  H,  if  the  defendant  pleads  molliter 
manus  imposuit,  to  remove  the  plaintiff  from  his  close  at  A,  and 
the  plaintiff  reply  that  he  had  a  right  of  way  over  that  close,  it  is 
not  a  departure.^  So  in  an  action  of  debt  on  a  judgment,  the  de- 
fendant pleaded  an  insolvent  discharge,  and  the  plaintiff  replied 
that  the  judgment  was  rendered  in  another  State  on  certain  notes 
and  promises  in  writing,  made  prior  to  the  discharge.  This  was 
held  to  be  not  inconsistent  with  the  declaration  and  no  dej)arture 
therefrom  ;  but,  on  the  contrary,  was  matter  merely  explanatory  of 
the  declaration  and  tending  to  support  and  fortify  it.*  In  the 
case  not  reported,' commenced  under  the  Code,  the  action 
[*633]  was  upon  a  promissory  note  in  *the  individual  name  of  the 
president  of  a  bank  organized  under  the  general  banking 
law.     The  complaint  did  not  show  that  the  note  was  owned  by 

'  1  Chit.  PI.  634.  « 1  Cow.  316. 

» Id.  « Beekman  v.  Cutler,  J&n.  Gen.  Term 

'  2  Sannd.  68.  1851,  8d  district. 

<!  20  Johiifl.  103.  •'  1  ("hit.  PL  737. 


720  KEPLY.  [CH.VI. 

the  bank.  The  defendant's  ansvv^er  alleged  that  the  plaintiif  was 
not  the  real  party  in  interest,  but  that  the  note  was  owned  by  the 
bank.  The  plaintiif  replied  that  the  bank  was  organized  under 
the  act  of  183S  (which  authorizes  the  president  to  sue  in  his  own 
name),  and  that  the  plaintiff  was  the  president  of  such  bank. 
The  defendant  demurred  to  the  reply,  on  the  ground  of  its  being 
a  departure  from,  and  inconsistent  with,  the  complaint.  The 
demurrer  was  overruled  at  the  circuit,  and  judgment  affirmed  on 
appeal  at  general  term. 

So  in  the  case  of  Manning  v.  Witbeck,  cited  on  a  former  page,' 
the  plaintiffs,  in  an  action  to  recover  personal  property,  alleged 
generally  their  ownership  of  the  property,  and  the  defendants, 
by  way  of  answer,  set  up  that  the  goods  were  not  the  property 
of  the  plaintiffs,  but  some  time  before  had  been  sold  by  them  to 
one  of  the  defendants ;  the  plaintiffs,  relying  upon  the  fact  that 
the  sale  had  been  procured  by  the  fraudulent  representations  of 
the  defendant,  moved  to  strike  out  the  allegations  of  the  answer ; 
but  the  court  said  that  they  should,  themselves,  have  brought 
forward  the  alleged  fraudulent  representations  in  their  complaint 

as  the  facts  establishing  their  ownership,  and  not  having 
[*631J  done  *  so  they  were  bound  to  do  it  in  the  form  of  a  reply 

to  the  new  matter  in  the  answer. 
Cases  like  the  foregoing,  however,  it  is  evident,  cannot  now 
occur,  there  being  no  repl}^  except  to  a  counter-claim  j  and  these 
decisions  are  of  service  merely  as  indicating  generally  the  rules 
which  test  the  question  whether  a  reply  is  inconsistent  or  not. 
In  this  class  of  cases  it  might,  and  still  may,  perhaps,  be  laid 
down  as  a  safe  rule  in  framing  the  pleading,  that  whatever  would 
have  been  a  departure  under  the  old  system  in  matters  of  sub- 
stance, and  reached  by  a  general  demurrer,  may  be  considered  an 
inconsistent  reply  under  the  Code,  and  therefore  defective.  Thus, 
in  Brand  v.  Schenectady  &  Troy  Railroad  Co.^^  a  case  under 
the  Code,  where  the  complaint  alleged  injury  to  the  plaintiff  in 
consequence  of  being  carelessly  run  against  by  the  engine  of 
defendant,  and  the  answer  denied  the  careless  management  of  the 
engine,  but  charged  that  the  injury  was  occasioned  by  the  plain- 
tiff's own  carelessness,  and  the  reply  set  up  that  the  injury  was 

»  Ante,  page  246,  marg.p.  *  8  Barb,  S.  C.  376. 


SEC.  I.]  MATTER   OF,    HOW   PLEADED.  721 

occasioned  by  tlie  bad  condition  of  the  track  of  the  road, 
whereby  the  plaintiff  was  hindered  and  delayed  in  crossing  it; 
this  was  said  by  the  court  to  be  a  departure  in  pleading.  But  as 
no  objection  was  taken  before  or  at  the  trial,  the  objection,  it  was 
held,  was  waived.     And  so  in  Brown  v.  McCune^  in  the  New 

York  superior  court,  where  the  action  was  for  the  price 
[*635]  of  goods  sold,  and  the  defense  was  infancy,  *  and   the 

reply  set  up  that  the  defendant  falsely  and  fraudulently, 
at  the  time  of  sale,  averred  that  he  was  of  full  age,  and  thus 
induced  the  plaintiffs  to  sell ;  the  court,  holding  such  a  reply  to 
be  unavailable,  says  :  "  It  is  in  the  complaint,  and  not  in  the 
reply,  that  we  are  to  look  for  the  cause  of  action.  If  the  plaintiffs 
had  intended  to  change  their  ground  of  action  from  a  demand 
upon  contract  to  one  for  a  fraud,  they  should  have  amended  their 
complaint.  The  statement  of  the  fraud,  for  the  first  time  in  the 
reply,  did  not  avail  to  make  it  a  good  cause  of  action." 

A  more  difficult  question  arises  as  to  the  proper  mode  of  taking 
the  objection  to  an  inconsistent  reply.  Section  155  of  the  Code 
permits,  in  express  terms,  a  demurrer  to  a  reply,  for  insufficiency. 
In  the  case  last  cited,  it  was  held  that  the  objection  to  such  a 
reply  was  not  waived  by  the  defendant's  proceeding  to  trial  with- 
out demurring,  and  evidence  of  the  fraudulent  representation  as 
the  distinct  cause  of  action  set  up  in  the  reply  was  properly 
rejected.  In  the  case  of  Beekman  v.  Cutler,  supra^  it  was  held, 
at  the  circuit,  by  the  justice  who  overruled  the  demurrer,  that  a 
demurrer  would  not  lie  to  a  reply  which  was  sufficient  in  sub- 
stance, though  it  might  be  a  departure  from  the  complaint ;  the 
proper  course  was  by  motion  to  strike  out  as  in*elevant.  The 
general  term,  on  affirming  this  judgment,  delivered  no 
[*636]  opinion,  though,  it  is  presumed,  the  ground  *of  the  de- 
cision of  the  circuit  court  was  concurred  in.  When,  then, 
is  a  reply  said  to  be  "  insufficient^''  within  the  meaning  of  the 
Code,  so  as  to  be  reached  by  demurrer  ?  In  Roe  v.  The  Wash- 
ington Mutual  Insurance  Co.^  Justice  Gridley  notices  this 
point,  without,  however,  deciding  it.  The  question,  it  was  said, 
might  arise  as  to  what  defects  will  render  a  reply  insufficient  — 

«  5  Sandf.  234.  »  6  How.  Pr.  21. 

»  Aute,  page  632,  marg.  p. 

91 


722  REPLY.  [CH.  VI. 

whether  insufficient  as  an  answer  to  the  previous  pleading  in 
matters  of  substance,  or  insufficient  as  a  compliance  with  the 
rules  of  pleading  of  the  Code.  The  question  was  not  adjudicated 
in  that  case,  the  decision  being  placed  on  other  grounds.  But  in 
Fry  V.  Bennett^  the  New  York  superior  court  held  that  the  term 
insufficient  related  not  only  to  an  absolute  defect  in  pleading  in 
matters  of  substance  as  a  defense  or  reply  to  a  previous  pleading, 
but  also  to  a  violation  of  the  rules  of  pleading  prescribed  by  the 
Code,  and  that,  where  a  pleading  violated  these  rules,  it  might  be 
demurred  to  for  insufficiency.  This  decision,  corresponding  in 
some  respects  with  the  decision  of  the  same  court  in  Fahricotti 
V.  Launitz^  it  is  presumed  may  be  safely  adopted  as  a  precedent. 
A  reply  which  does  not  serve  to  maintain  and  fortify  the  com- 
plaint, but  is  a  departure  from  and  inconsistent  with  it,  is 
insufficient    as    an    answer    to   the    previous    pleading    within 

the  rule  laid  down  by  the  Code,  and  may,  therefore,  be 
[*63T]    ^reached  by  demurrer.      I  see  no  reason  why  such  a 

reply  may  not  also  be  struck  out  on  motion ;  and,  per- 
haps, this  would  be  the  preferable  course.  The  general  rule  of 
practice  is,  no  doubt,  laid  down  with  entire  accuracy  b}^  Justice 
Marvin,  in  Robinson  v.  Judd^  that  if  a  pleading  is  not  author- 
ized by  the  Code,  or  if  the  manner  of  pleading  is  not  authorized, 
and  the  Code  has  provided  no  specific  mode  of  bringing  the  ques- 
tion before  the  court,  it  may  be  presented  by  motion,  generally, 
if  not  always,  upon  the  ground  of  irregularity.  An  inconsistent 
reply  is  irregular,  and,  as  such,  may  be  set  aside  on  such  terms 
as  the  court  shall  prescribe ;  or,  it  may  be  entirely  irrelevant^ 
and,  as  such,  liable  to  be  struck  out  on  motion,  under  section  152. 
Such  a  motion  is  to  be  decided  on  the  same  principles  as  a  de- 
murer ;*  and,  if  the  matter  is  struck  out,  the  party  aggrieved  may 
appeal."  An  inconsistent  reply  is  certainly  irrelevant  to  the 
matter  in  controversy,  even  though  it  may  contain  matters  M^hich 
otherwise  would  avail  the  plaintiff  in  making  out  a  cause  of 
action. 

Reply  may  he  to  part  of  answer.  —  The  plaintiff  may  demur 
to  one  or  more  of  several  defenses  or  counter-claims  set  up  in  the 

'  1  C.  R.  N.  S.  239 ;  5  Sandf.  54.  *  Per  Harris,  J.,  6  How.  Pr.  70. 

»  3  Sand.  743.  '  Bedell  v.  Stickles,  4  How.  Pr.  433. 

»  9  How.  Pr.  378. 


BEC.  I.J  MATTER   OF,    HOW   PLEADED.  723 

answer,  and  reply  to  the  residue  of  the  counter-claims.     When  it 
is  said,  however,  tliat  a  plaintiff    may    demnr    to    part   of  a 

defense  and  reply  to  the  residue,  it  must  be  understood 
['•638]  ■■•  to  mean  only  in  those  cases  where  two  or  more  separate 

and  distinct  defenses  are  set  up  in  the  answer.  A  demur- 
rer will  not  lie  to  part  of  an  entire  defense  ;  therefore  a  plaintiff 
cannot  select  from  the  answer  certain  matters  not  constituting  an 
entire  defense  and  demur  to  them,  and  at  the  same  time  reply  to 
the  residue.'  The  meaning  of  the  Code  is,  that  where  the  defend- 
ant sets  up  more  than  one  entire  and  complete  counter-claim  in 
his  defense,  the  plaintiff  may  reply  to  one  or  more  of  them,  and 
demur  to  the  residue.  Where  a  demurrer  and  a  reply  were 
interposed  to  different  parts  of  the  same  entire  defense,  the  court 
on  argument  overruled  the  demurrer.^  It  was  said  in  that  case,- 
that  the  more  correct  practice  would  have  been  for  the  defendant 
to  move  to  strike  out  the  demurrer.  This  would  have  been  done, 
or,  as  in  S  locum  v.  Wheeler^''  the  plaintiff  compelled  to  elect  by 
which  he  would  abide. 

Manner  of  stating  new  matter  in  the  reply.  —  The  reply  to 
defendant's  coimter-claim  being,  as  we  have  seen,  entirely  in  the 
nature  of  an  answer  to  an  original  complaint,  the  same  rules 
govern  the  mode  and  manner  of  stating  facts  in  a  reply  which  are 
applicable  to  the  answer.  Under  the  practice  in  equity,  the  rep- 
lication was  a  mere  formal  averment  of  the  truth  and  sufficiency 

of  the  bill,  and  a  denial  of  the  allegations  in  the  answer. 
[*639]  Formerly,  the  *  practice  was,  if  the  defendant  offered  new 

matter  by  way  of  defense  in  his  answer,  the  complainant 
replied  specially ;  but  afterward  the  use  of  a  special  replication 
was  discontinued,  and  if  the  plaintiff  desired  to  avoid  the  effect 
of  the  new  matter,  his  proper  course  was  to  apply  to  amend  the 
charging  part  of  his  bill.* 

These  rules,  it  will  be  observed,  can  have  no  application  to  the 
Code.  A  formal  reply,  merel}  for  the  purpose  of  producing  an 
issue,  is  done  away  with  entirely.  There  is  no  such  thing  now  as 
a  charging  part  to  a  complaint ;  that  is,  a  part  ariticipating  the 
defense,  and  setting  forth  the  alleged  pretenses  of  the  defendant. 

'  Cohh  V.  Fmzee,  4  How.  Pr.  413.  ^  4  How.  Pr.  .",73. 

«  Cohh  V.  Frazee,  4  How.  Pr.  414.  "  1  Barb.  Ch.  Pr.  249.  250 


724  EEPLY.  [CIT,  VI. 

His  defense  must  properly  appear  by  tTie  statements  of  tlie  defend- 
ant himself.  Matters  which  were  in  equity  the  subjects  of  a 
cross-bill  by  the  defendant,  requiring  an  answer  from  the  plain- 
tiff, are  now  to  be  set  up  by  way  of  counter-claim  in  the  same 
action,  and  are  to  be  answered  by  the  reply  as  prescribed  in  the 
Code.  The  general  and  special  replication,  as  formerly  used  in 
chancery,  in  respect  to  matter  in  avoidance  alleged  in  the  answer, 
are  no  longer  necessary.  If  matters  in  the  reply  be  clearly  friv- 
olous or  palpably  impertinent  as  a  bar  to  the  defendant's  claim, 
they  should  be  struck  out,  in  analogy  with  the  old  practice  of 
striking  out  frivolous  matters  in  a  notice.*  If,  however,  they 
serve  to  fortify  and  sustain  the  complaint,  they  should  be  per- 
mitted to  remain  on  the  record. 
[*64:0]  *A  replication,  by  way  of  a  new  assignment  of  the 
plaintifi''s  cause  of  action,  in  case  of  an  evasive  plea,  can 
no  longer  be  necessary.  Such  new  assignment,  under  the  old 
practice,  was  in  the  nature  of  a  new  declaration,  or  rather  of  a 
more  precise  and  particular  repetition  of  the  declaration.'  The 
same  thing  can  be  accomplished  under  section  172  of  the  Code, 
by  amending  the  complaint  as  of  course  within  twenty  days  after 
service  of  the  answer. 


SECTION  11. 

VERIFICATION  OF  THE   REPLT. 

The  reply  of  the  plaintiff  to  the  defendant's  answer  must  be 
verified  in  the  manner  prescribed  by  section  15Y  of  the  amended 
Code,  when  the  plaintiff,  by  verifying  his  complaint,  has  made  it 
necessary  for  the  defendant  to  put  in  an  answer  under  oath.  And 
even  if  the  complaint  be  not  sworn  to,  the  defendant,  if  he 
choose,  may  verify  his  answer,  in  which  case,  if  the  plaintiff  put 

in  a  reply,  it  must  be  verified.' 
[*641]       *  A  party  is  privileged  from  verifying  a  reply  in  the 
same  cases  in  which  he  is  privileged  from  verifying  an 
answer. 

*  1  Hill,  663.  '  Levi  v.  Jakeways,  4  How.  Pr.  126, 

2  Steph.  PL  227, 1  Burr.  Pr.  187.  Code,  §  15G. 


SEC.  III.]       SHAM,    IRRELEVANT  AND   FRIVOLOUS.  725 

And,  generally,  tlie  rules  applicable  to  the  verification  of  an 
answer  are  the  same  with  those  applicable  to  the  verification  of 
the  reply  as  to  which  vide  eh.  5,  §  5.' 


SECTION  III. 

BHAM,  IRRELEVANT  AND   FRIVOLOUS  REPLY. 

If  a  reply  be  frivolous,  the  opposite  party  may,  upon  a  previous 
notice  of  five  days,  apply  to  a  judge  of  the  court,  either  in  or  out 
of  the  court,  for  judgment  thereon,  and  judgment  may  be  given 
accordingly." 

This  provision  of  the  Code  remains  unchanged  by  the  later 
amendments.  It  is,  of  course,  to  be  taken  in  connection  with 
those  amendments,  and  its  efi'ect  is,  therefore,  much  restricted. 
Prior  to  these  amendments,  every  allegation  of  new  matter  in  the 
answer  was  required  to  be  traversed,  or  confessed  and 
[*642]  avoided,  by  the  reply ;  and  a  reply,  not  generally  *  or 
specially  controverting  a  material  allegation  of  new  mat- 
ter in  the  answer,  but  setting  up  some  frivolous  matter  of  avoid- 
ance thereto  might,  under  this  section,  be  overruled  on  a 
summary  application  to  a  judge,  either  in  or  out  of  court,  and 
judgment  be  rendered  for  the  plaintifi",  as  for  want  of  a  reply. 

By  the  amendments,  however,  as  we  hav  seen,  new  matter  in 
the  answer,  not  constituting  a  counter-claim,  is  considered  con- 
troverted for  the  purposes  of  the  trial,  and  an  issue  is  joined 
thereon  which  must  be  tried.  However  frivolous,  then,  a  reply 
of  new  matter  may  be,  the  defendant  cannot,  under  tbis  section, 
move  for  judgment  so  long  as  any  material  issue  of  fact  remains 
untried  in  the  cause.'  A  frivolous  reply,  within  the  meaning  of 
this  section,  to  authorize  an  application  for  judgment,  must  be 
one  which  admits  the  allegations  in  the  defendant's  answer,  and 
undertakes  to  avoid  them  by  matters  which,  upon  their  face,  are 
clearly  and  palpably  frivolous.  If  any  issue  of  f^ict  remains  to  be 
tried,  the  frivolous  reply,  if  clearly  frivolous  and  irrelevant,  may 
be  struck  out  on  motion ;  or  if  there  is  a  doubt  as  to  its  sufli- 

'  See  also  verification  of  the  com-  ^  Com!<tock  v.  Ilallock,  1  C.  R.  N  S. 
plaint,  ch.  4,  ^  4.  200  {CoUins  v.  Suau,  7  Rob.  94]. 

'  Code.  i5  247. 


726  EEPLY.  [CH.  VT. 

2ieucy  in  law  to  constitute  an  answer  to  the  defendant's  defense, 
the  objection  may  be  taken  by  demurrer.' 

Sham  andirrelevant  reply.  —  Section  152  authorizes  "sham 
and  irrelevant  answers  and  defenses  ^^  to  be  struck  out  on 
[*643]  motion.  Is  tliis  section  confined  "^  in  terms  to  the  defend- 
ant's answer  or  may  it  be  also  extended  to  the  reply  ?  A 
reply  of  new  matter  to  the  defendant's  counter-claim  is  in  the 
nature  of  an  answer  to  such  new  matter.  In  other  words,  it  is  a 
defense  to  what  would  have  been  a  cause  of  action  if  pleaded  in 
an  original  suit.  A  counter-claim  is  nothing  more  or  less  than  a 
cause  of  action  between  the  same  parties,  which  the  Code  permits 
to  be  set  up  as  a  defense  in  the  same  action,  and  finally  deter- 
mined on  the  same  trial.  When  the  reply  alleges  new  matter,  it 
is  a  defense  to  such  counter-claim.  If  such  defense  be  sham  or 
irrelevant,  it  seems  to  come  not  only  within  the  spirit  and  mean- 
ing, but  within  the  language  and  letter  of  the  Code.  A  sham, 
that  is  a  false,  and  an  irrelevant,  that  is  a  foreign  and  palpably 
insufiicient  reply,  may  be  struck  out  on  motion  under  section  152. 
And  so,  it  seems,  where  a  reply  is  unnecessarily  pleaded,  as,  for 
example,  a  reply  to  new  matter  not  constituting  a  counter-claim, 
such  reply  may  be  considered  as  irrelevant  and  will  be  struck  out.' 
In  strictness,  however,  the  proper  motion  to  reach  such  an 
unauthorized  pleading  would  be  to  set  it  aside  for  irregularity.' 
Judgment  cannot  be  given  for  the  defendant  on  striking  out  a 
sham  and  irrelevant  reply."  Nor,  within  the  case  of 
[*6M]  Darrow  v.  Miller,^  can  judgment,  "^  on  account  of  the 
frivolousness  of  the  reply,  be  given  unless  the  notice  of 
motion  specifies  that  the  party  will  apply  for  such  judgment.  If 
the  application  is  merely  to  strike  out  a  defense  {i.  e.,  an  answer 
or  reply)  as  sham  or  irrelevant,  the  motion  is  analogous,  and  the 
order  will  be  similar  to  that  of  an  application  to  strike  out 
redundant  and  irrelevant  matter  under  section  160.  The  sham 
or  irrelevant  reply  will  be  struck  out  with  costs,  or  on  such  terms 
as  the  court  may  impose,   and  the  plaintiff  be  permitted,  if  a 

'  4  How.    Pr.  68  ;  4    Sandf .   660  ;  6        ^  Simpson  et  nl.  v.  Loft,  8  How.  234  • 
How.  Pr.  21.  Robinson  v.  Judd,  7  id.  378. 

^  Putnam  v.  Deforest,  8  How.  146  ;        ■*  Potter  v.  Carreras,  4  Rob.  62a ,  but 
Willams  v.  Upton,  id.  205.  see  Joannes  v.  Day,  3  id.  650. 

"  5  How.  Pr.  247. 


SEC.  IV. J  SUPPLEMENTAL   REPLY.  727 

proper  case  is  shown,  to  make  a  further  reply,  leaving  the  issues 
joined  on  the  answer  of  the  defendant  to  be  tried. 

As  to  the  nature  of  a  sham,  irrelevant,  and  frivolous  defense, 
the  distinction  existing  between  such  defenses,  and  the  mode  of 
taking  an  objection  to  them,  respectively,  see  aiite^  ch.  5,  §  6. 


SECTION  IV. 

SUPPLEMENTAL  REPLY. 

The  plaintiff,  under  section  177,  may  be  allowed,  on  motion,  to 
make  a  supplemental  reply  alleging  facts  material  to  the  case 
occurring  after  his  former  reply,  or  of  which  he  was  ignorant 
when  his  reply  was  made.  This  supplemental  reply  of  new 
matter  is  also  entirely  analogous  to  a  supplemental  answer 
[*645]  by  the  defendant  to  the  plaintiff's  complaint,  and  is  gov- 
erned by  the  same  rules.'  A  defendant  was  not  allowed 
to  make  a  supplemental  answer  contradicting  the  statements  in 
his  first  answer,  nor  to  alter  essentially  and  new  model  the 
matter  of  his  original  answer.''  This  rule  is,  no  doubt,  equally 
applicable  to  a  supplemental  reply.  It  may  be  added  that  such 
supplemental  reply,  like  the  original  reply,  must  not  be  inconsist- 
ent with  the  complaint,  but  must  consist  of  matter  tending  to 
strengthen  or  fortify  the  complaint,  or  comprising  a  new  and 
separate  defense  to  the  defendant's  counter-claim,  and  one  which 
is  consistent  with  the  defense  already  set  up. 

The  facts  proper  to  be  stated  in  the  supplemental  reply  must 
be  such  as  have  occurred  after  the  former  reply  was  put  in,  or  of 
which  the  plaintiff  was  at  that  time  ignorant. 

In  Beats  v.  Cameron^ '  the  answer  alleged  the  pendency  of 
another  suit  for  the  same  demand,  whereupon  the  plaintiff  discon- 
tinued the  former  suit,  and  replied  the  discontinuance.  This 
reply  was  held  good.  The  question  is,  says  the  court,  whether 
the  reply  was  in  fact  true  at  the  time  it  was  made  or  put  in.  If, 
at  that  time,  the  first  suit  was  legally  discontinued,  there  was 
but  one  suit  then  depending,  and,  consequently,  the  reply  was 

•  See  ante,  ch.  5,  ^  7.  »  3  How,  Pr.  414. 

«  1  Barb,  Ch,  Pr.  i67 


728  EEPLT.  [CH.  VI. 

[*646]  substantially  true.  This  agrees  with  the  rule  laid  *  down 
in  Willis  v.  Chipp  *  relative  to  the  answer,  namely,  that 
any  facts  existing  at  the  time  the  defendant  answers,  and  which 
show  that  the  plaintiff  ought  not  to  have  a  judgment  against  the 
defendant,  may  be  inserted  in  the  answer.  So,  any  facts  exist- 
ing at  the  time  the  reply  is  put  in,  and  which  show  that  the 
defendant's  counter-claim  has  been  discharged  or  extinguished, 
may  be  set  up  in  the  ordinary  reply ;  but  if  such  facts  arise  after 
a  reply,  they  must  then  be  set  up  by  way  of  supplemental  reply 
on  leave  of  the  court.  And  the  rules  generally  applicable  to  the 
supplemental  answer  to  the  plaintiff's  complaint,  it  is  conceived, 
are  applicable  to  the  supplemental  reply  to  the  defendant's  coun- 
ter-claim ;  as  to  which,  see  ante,  chap,  v,  sec.  vii. 

»  d  How.  Pr.  568. 


[*647]  *  CHAPTER  YIL 

OF  THE  DEMURRER. 

A  demurrer  at  law  is  defined  to  be  a  pleading  which  imports  that 
the  objecting  party  will  not  proceed  with  the  pleading  because  no 
sufficient  statement  has  been  made  on  the  other  side,  but  will  wait 
the  indo-ment  of  the  court  Avhether  he  is  bound  to  answer.  It 
might  be  for  insufficiency,  either  in  substance  or  mform;  either  on 
the  o-round  that  the  case  shown  by  the  opposite  party  was  essentiaUy 
insufficient  to  maintain  the  action  or  defense,  or  on  the  ground  that 
it  was  stated  in  an  inartificial  manner.  In  the  former  case,  the 
demurrer  might  be  general,  and  might  except  to  the  sufficiency  ot 
the  pleading  in  general  terms,  without  showing  specifacally  the 
nature  of  the  objection.  In  the  latter  case,  it  was  required  to^  be 
special,  and  to  point  out  the  particular  ground  of  the  exception. 

The  use  of  the  demurrer  to  the  bill  of  complaint  m  equity  was 
entirely  similar.     Whenever  any  ground  of  defense  was  apparent 

upon  the  bill  itself,  either  from  the  matter  contained  m  it, 
r*648l  or  from  defect  *  in  its  frame,  or  in  the  case  made  by_  it,  a 

demurrer  was  proper.*  It  was  an  allegation,  which,  admitting 
the  matters  of  fact  stated  in  the  bill  to  be  true,  insisted  that  they  were 
insufficient  for  the  complainant  to  proceed  upon,  or  to  oblige  the 
defendant  to  answer;  or  that,  for  some  reasons  apparent  on  the  lace 
of  the  bill,  or  because  of  the  omission  of  some  matter  which  ought 
to  be  contained  in  it,  or  for  want  of  some  circumstance  which  ought 
to  be  attendant  thereon,  the  defendant  ought  not  to  be  compelled 

to  answer.*  .    3  c      i  • 

A  demurrer,  as  applied  to  the  present  practice,  is  defined  m  gen- 
eral terms,  and  the  cases  in  which  it  may  be  used  specified  by  the 
Code.  It  is  the  object  of  the  present  chapter  to  consider  the  nature 
of  the  demurrer,  how  and  when  it  may  be  pleaded,  and  generally 
the  changes  in  respect  to  it  which  have  been  effected  by  the  Ooae, 
The  subject  will  be  considered  in  the  following  order: 

1.  Nature  and  use  of  the  demurrer. 

2.  Wliat  matter  in  a  complaint  may  be  demurred  to 

3.  What  matter  in  an  answer  or  reply. 

4   Grounds  of  demurrer,  liow  to  be  stated. 

5.  Objection,  when  it  may  be  reached  by  answer,  when  taken  on  motion  01 

by  demurrer,  and  when  deemed  to  be  waived. 

6.  Frivolous  demurrer  and  practice  thereon. 

1  1  Steph.  PI.  43.  '  Mitf .  Eq.  PI.  107 ;  1  Baib.  Ch.  Pi 

2  Id.  140.  106. 
8  Mitf.  Eq.  PI.  107. 

92 


730  DEMUERER.  [CH.   VU 

[*649J  *  SECTION"  I. 

NATDBE  AND  USE  OF  THE    DEMURKER. 

A  demurrer,  both  under  tlie  practice  at  law  and  in  equity, 
admitted  the  facts  pleaded  for  the  purpose  of  the  argument,  and 
merely  referred  the  question  of  their  legal  sufficiency  to  the 
decision  of  the  court,*  The  rule  is  not  changed  by  any  provision 
of  the  Code.*  A  demurrer  which  does  not  admit  the  facts  is 
insufficient,  and  will  be  disregarded  for  all  purposes/  [The  courts 
of  this  State  entertain  jurisdiction  of  actions  for  injuries  com- 
mitted abroad,  when  one  or  both  of  the  parties  are  citizens  of  the 
United  States.  So  they  have  jurisdiction,  in  actions  for  such 
injuries,  between  non-resident  foreigners,  but  as  matter  of  discretion 
will  only  exercise  it  in  exceptional  cases.  On  demurrer,  the  pro- 
priety of  retaining  jurisdiction  must  be  determined  upon  the 
jyleadiiigs.  If  there  are  any  special  reasons  for  retaining  jurisdic- 
tion, they  would  not  and  could  not  properly  appear.  On  a  motion 
to  dismiss  the  complaint,  such  reasons,  if  any,  can  be  shown  by 
the  opposing  affidavits,  and  the  court  will,  in  its  discretion,  deter- 
mine whether  it  will  retain  jurisdiction."] 

Under  the  old  practice,  there  was  a  great  variety  of  causes  for 
which  a  demurrer  would  lie,  not  only  matters  of  substance,  but 
the  merest  matters  of  expression  and  form.  Thus,  if  a  plaintiff 
omitted  to  allege  a  day,  or  a  place,  in  his  declaration,  it  was 
demurrable ;  so,  if,  in  an  action  of  trespass  he  omitted  the  formal 
words  "  against  the  peace,"  and  "  by  force  and  arms,"  the  defend- 
ant might  demur.  The  Code  makes  no  provision  for  a  demurrer 
in  any  of  these  cases,  or,  indeed,  in  any  case  whatever,  where, 
under  the  old  system,  the  matter  objected  to  would  have  been 
defective  in  form,  or  by  reason  of  an  inartificial  manner  of  state- 
ment. An  omission  to  allege  a  day  or  a  place,  for  exam- 
P650]  pie,  cannot  be  demurred  to  ;  *  but  if,  for  the  want  of  any 
such  allegation,  the  pleading  is  not  reasonably  definite  or 
certain,  the  party  aggrieved  may  obtain  a  remedy  on  motion 
under  the  latter  clause  of  section  160  of  the  Code. 

'  Chit.  PI.  G61.  ■•  De  Witt  v.  Buchanan,  10  Abb.  N,  S 

«  Uall  V.  Bartlett,  9  Barb.  S.  C.  297.     Ill,  54  Barb.  31. 
»  Clark  V.  Van  Duzen,  3  C.  R.  219. 


gPC,  I.]  NATURE  AKI)   USE   OF.  731 

A  demurrer  at  law,  when  for  matters  of  substance,  miglit  be 
aeneraL  tliougli  if  there  were  any  doubts  as  to  whether  the  defect 
Avas  one  of  substance  or  merely  of  form,  a  special  demurrer  was 
the  better  course,  inasmuch  as  it  raised  at  once  the  questions  as 
to  the  particular  defects  pointed  out,  and  generally  as  to  the  suih- 
ciencv  of  the  declaration.  A  demurrer  to  a  bill  in  eqmty  was 
generally  required  to  express  the  grounds  upon  which  it  was 
founded/     This  is  the  practice  retained  by  the  Code.* 

A  defendant  was  not  limited  to  one  cause  of  demurrer  only, 
either  to  a  pleading  at  law  or  a  bill  in  equity.  He  might  assign 
as  many  causes  of  demurrer  as  he  pleased,  and  if  any  one  of  the 
causes  assigned  was  held  good,  the  demurrer  would  be  allowed. 
This  rule  is  also  unchanged ;  a  defendant  may  demur  for  any  one 
or  more  of  the  causes  specified  by  the  Code. 

In  equity,  a  demurrer  might  be  to  the  whole  bill,  or  to  a  part 
only  of  the  bill  The  defendant  might  demur  to  a  part,  plead  to 
another  part,  and  answer  as  to  the  residue ;  though  such  defenses 
were  each  required  to  be  to  difi-erent  and  distinct  parts  of  the 
r*651]  *bill,  and  to  be  consistent  with  each  other.'  At  law  a 
demurrer  was  allowed  to  one  of  several  different  counts 
in  the  declaration  and  an  answer  to  the  residue  Ttiis  rule  is 
preserved  by  the  Code;  but  the  demurrer  in  such  case  must  be 
to  an  entire  cause  of  action  or  defense. 

In  Manchester  et  at.  v.  Storrs  et  al.;  Mr.  Justice  GBiDLETheld, 
at  special  term,  that  not  only  was  a  demurrer  unauthorized  by 
the  Code  to  part  of  the  allegations  in  the  complaint,  all  of  which, 
connected    together,  form   a  statement  constituting  one  entire 
cause  of  action,  but  that  a  defendant  could  not  even  demur  to 
one  of  two  or  more  distinct  causes  of  action  set  up  m  the  com- 
plaint, and  answer  the  residae.     "We  must  forget,"  he  says,    all 
old  rules  respecting  demurrers,  and  regard  a  demurrer  now  as  a 
pleading  created,  with  its  character  and  office  defined   by  the 
Code  "     He  held,  in  that  case,  that  while  at  law  a  demurrer  was 
allowed  to  one  of  several  different  counts,  and  while  ^^  ^^^.^^^^  you 
might  demutto  a  part  and  answer  the  residue  of  the  bih,  that  the 
Code  did  not  authorize  a  demurrer,  except  to  the  entire  complamt. 

;  It  ,mig.t  be   ger^exal    or    special.        J  Stores  Ecj.  PI-.  |  443- 
^'»Xt^|/of 'tti'^hapter.  '  3  How.  Pr.  410. 


732  DEMURREE.  [CH.  VII. 

This  decision  was  made  before  tlie  amendment  of  1849  to  the 
Code,  specified  in  section  149.  A  demurrer  may  now  be  taken 
"  to  the  whole  complaint,  or  to  any  of  the  alleged  causes  of  action 

stated  therein."  This  language,  however,  does  not,  it  is 
[*652]  conceived,  change  the  rule  laid  down  in  the  case  last  *cited, 

that  the  demurrer  must  be  to  an  entire  cause  of  action  or 
defense,  and  cannot  be  to  part  of  the  allegations  which  constitute 
such  cause  of  action  or  defense.  This  construction  is  apparent 
fi'om  section  151  as  amended,  and  has  also  been  so  repeatedly 
adjudicated.'  But,  under  the  Code,  it  has  been  held  that  a 
demurrer  must  not  be  too  broad  ;  as  where  a  complaint  has  a 
double  aspect,  one  being  an  ordinary  creditor's  bill,  and  the  other 
to  set  aside  an  assignment  made  by  defendant,  a  demurrer  to  the 
whole  complaint  that  it  does  not  show  the  return  of  an  execution 
unsatisfied,  is  bad,  and  will  be  overruled,  because  such  an  objec- 
tion could  not  be  taken  to  the  complaint  in  its  second  aspect.' 
And  so  also  if  there  be  more  than  one  cause  of  action,  and  the 
demurrer  be  to  the  whole  complaint,  if  one  of  the  causes  of 
action  be  good,  the  demurrer  will  be  overruled,  and  will  not  be 
held  to  reach  the  defective  count  or  cause  of  action.' 

It  was  a  rule  in  pleading  that  on  a  demurrer  the  court  will 
consider  the  whole  record,  and  give  judgment  fur  the  party,  who, 
on  the  whole,  appears  to  be  entitled  to  it.  Thus,  when  the  plain- 
tiff demurred  to  defendant's  plea,  if  his  declaration  was  bad, 
judgment  would  be  rendered  for  the  defendant.*     So,   if  the 

demurrer  was  to  the  reply,  and  there  was  a  substantial 
[*653]  fault  in  the  plea,  judgment  would  be  rendered  for  *the 

plaintiff;  though  if  the  declaration  was  also  bad  in  sub- 
stance, the  defendant  was  entitled  to  judgment.  If  the  declara- 
tion, however,  contained  two  counts,  one  of  which  was  bad  and 
the  other  good,  the  good  count  would  support  the  declaration ; 
and  the  plaintiff,  on  demurrer  to  a  defective  plea,  would  be  entitled 
to  judgment."  But  in  looking  back  of  the  pleading  demurred  to, 
the  court  would  not  regard  matters  of  form.*     Thus,  on  a  demurrer 

'  4  How.  Pr.  413 ;  5  id.  5  ;  2  Sandf.  Newman  v.  Board  of   8uj)ervuors,  1 

704 ;  1  Code  R.  N.  S.  325.  Lans.  476  ;   Van  AUti/ne  v.  Frtday,  41 

'•'  Cooper  V.  Clnson.,  N.  Y.  special  term,  N.  Y.  174  ;  Pardo  v.  ()sr)ood,  2  Abb.  U. 

per  Edmonds,  J.,  1  Code  R.  N.  S.  347.  S.  3G5  ;  Allen  v.  Malcolm,  12  id.  345 

2  Butler  V.  Wood,  10  How.  Pr.  222.  ^  8  ^^end.  129  ;  10  Pet.  257. 

*  Aurora  City  v.   West,  7  Wall.  98  ;        «  Auro,-a  City  v.  West,  7  Wall.  82, 


SEC.  I.]  ISTATTJRE   AND   USE   OF.  733 

to  a  plea  defective  in  substance,  the  court  would  not  render  judg- 
ment against  tlie  plaintiff  for  the  reason  that  his  declaration  was 
technically  insufficient,  and  might  have  been  specially  demurred  to. 
Justice  Sandford,  in  the  case  of  Schwab  v.  Fm^niss,  in  the 
K.  Y .  superior  court,'  remarks,  in  regard  to  the  question  whether 
on  a  demurrer  either  party  may  go  back  and  attack  a  previous 
pleading :  "  I  have  come  to  the  conclusion  that  the  practice  in 
this  respect  remains  as  it  existed  in  actions  at  common  law  prior 
to  the  Code,  and  that  the  antecedent  pleading  may  be  attacked. 
For  example,  on  a  demurrer  to  an  answer,  the  defendant  may 
attack  the  complaint  for  defects  in  matters  of  substance,  but  not 
on  objections  which  go  only  to  the  form  of  the  pleading.  The 
defect  must  be  such  as  could  be  reached  by  a  general  demurrer." 
In  this  case,  as  elsewhere  reported,"  and  decided  with  the  con- 
currence of  all  the  judges  of  the  superior  court,  it  is 
[*G5-i]  further  observed :  "  There  is  no  more  *  reason  now  than 
formerly  that  a  plaintiff  should  have  judgment  on  demur- 
ring to  an  answer  when  it  appears  upon  the  face  of  the  record 
that  he  has  no  cause  of  action  ;  or  that  the  defendant  should  suc- 
ceed on  a  demurrer  to  the  reply,  when  it  is  apparent  upon  his 
answer  that  he  has  no  defense."  A  similar  doctrine  was  held  in 
the  same  «court  at  general  term,  in  the  case  of  Fry  v.  Bennett^ 
namely,  that  on  the  argument  of  a  demurrer  to  an  answer  the 
defendant  may  attack  the  complaint,  but  the  grounds  of  the 
attack,  to  render  it  successful,  must  be  such  as  would  have  entitled 
the  defendant  to  judgment  had  he  elected  to  demur  instead  of 
answering.  It  is  said  also  that,  on  such  a  demurrer,  the  complaint 
may  be  attacked  only  when  it  appears  on  its  face  that  the  plain- 
tiff has  no  cause  of  action,  or  that  the  court  has  no  jurisdiction ; 
defect  of  parties,  misjoinder  of  actions,  etc.,  are  not  such  objec- 
tions as  can  be  reached  in  this  manner.*  The  same  thing  was 
said  by  Justice  Hakkis,  The  People  v.  Banker^  and  by  Justice 
JoFNsoN,  in  Stoddart  v.  Onondaga  Annual  Conference."  The 
defect  in  the  complaint  which  can  be  reached  on  a  deraurrei  to  an 

94  ;  TiMs  v.   Caswell,  8   Wend.    129  ;  '      M  Code  R.  N.  S.  256. 

Railroad  Company  v.  Harris,  13  Wall.        "•  See  note  to  case  of  ScMoab  v.  Fkl/r- 

65.  niss,  1  Code  R.  N.  S.  342. 

'  1  Code  R.  N.  S.  342.  ^  8  How.  Pr.  258. 

« 4  Sandf .  704.  «  12  Barb.  S.  C.  574. 


734  DEMURRER.  [CH.  VII. 

answer  must  be  a  defect  in  substance^  eitlier  a  jurisdictional  defect, 
or  a  failure  to  set  forth  a  snfScient  cause  of  action.  Every  other 
defect  or  objection,  by  section  148  of  the  Code,  is  waived,  if  not 
pointed  out  in  the  answer;  but  these  defects  in  substance 
'"*6551  are  not  *  cured  by  a  neglect  to  bring  thera  up  in  the  first 
instance  by  answer  or  demurrer  ;  and  they  may  be  noticed 
at  any  time  when  the  question  is  raised  by  the  opposite  party, 
even  after  judgment,  on  appeal.' 

Under  the  former  practice  there  could  not  be  a  denmrrer  and  a 
plea  to  the  same  part  of  the  declaration.'  And  if  a  plea  con- 
tained several  distinct  matters,  divisible  in  their  nature,  as  separ- 
ate and  distinct  demands,  the  plaintiff  could  not  demur  generally 
to  the  whole  because  a  part  was  bad ;  he  should  demur  as  to  each 
of  the  separate  defenses  badly  pleaded,  and  answer  the  residue.' 
And  when  it  is  said  that  in  equity  a  defendant  may  demur,  plead 
and  answer  to  tlie  same  bill,  it  is  not  meant  tliat  he  may  demur 
and  answer  at  the  same  time  to  the  whole,  or  to  the  same  part  of 
a  bill,*  but  he  might  demur  to  one  part  and  answei*  the  residue. 
If  the  demurrer  was  not  to  the  whole  bill,  it  must  clearly  express 
the  particular  part  it  was  intended  to  cover,  and  if  any  part  of 
the  matter  covered  by  it  was  also  covered  by  a  plea  or  answer, 
the  whole  demurrer  would  be  overruled.  * 

These  rules,  that  a  demurrer  and  an  answer  cannot  be  both 
sustained  at  the  same  time  to  the  same  cause  of  action  or  defense, 
are  now  well  settled  to  be  applicable  to  an  action  under  the  Code. 
Although  it  was  intimated  in  one  or  two  of  the  earlier 
[*656]  *  cases  ^  that  a  defendant  might  demur  and  answer  to  the 
same  cause  of  action,  yet,  subsequent  cases  have  settled 
the  rule  to  the  contrary.' 

Where  two  defendants,  having  separate  interests,  sever  in  their 
defenses,  one  may  answer  and  another  demur  to  the  same  cause 
of  action.  Each  defendant  in  such  case  may  raise  a  separate  issue 
on  the  plaintiff's  complaint,  and  is  entitled  to  interpose  any 
defense  he  may  think  proper.     An  answer  of  one  of  several 

>  Rayner  v.  Clark,  7  Barb.  S.  C.  581.  «  Slocum.  v.  Wheeler,  4  How.  Tr.  373  ; 

2  5  Wend.  104.  Cohh  v.    Frmee,  id.  413 ;  Spelman  v. 

3  11  Johns.  16.  Weider,  5  id.  5  ;  Ingrali'un  v.  Baldmn 
*  6  Johns.  Ch.  214.  12  Barb.  10 ;  Miinn  v.  Barnum,  1  Abb 
-  Falconer  v.  Meyer,  2  Code  R.  49 ;  Pr.  281. 

Oilhevt  V.  Davies,  id.  50. 


SEC.  II.]  TO   THE   COMPLAINT.  735 

defendants  separately  liable  will  not  inure  as  an  answer  of  the 
others.'  Where  a  complaint  sets  forth  several  distinct  acts  done 
by  the  defendants,  and  claims  that  by  each  of  such  acts  the 
defendants  became  liable  to  pay  the  plaintiff,  etc.,  this,  it  seems, 
may  be  regarded  as  a  complaint  containing  several  causes  of 
action,  and  separate  demurrers  may  be  interposed  to  each,  or  the 
defendant  may,  it  seems,  demur  to  one  and  answer  the  residue.' 

The  nature  of  a  demurrer,  therefore,  under  the  Code,  is  not 
essentially  different  from  what  it  was  under  the  old  practice.  Its 
uses  are  similar,  with  the  exception  that  it  is  now  applied  only 
to  raise  objections  to  matters  of  substance,  and  can  be  used 

only  in  the  cases  prescribed  in  the  Code.^  These 
[^^657]  *  cases  I  shall  consider  in  the  subsequent  sections  of  this 

chapter.  A  demurrer  cannot  be  used  under  the  new  sys- 
tem, any  more  than  it  could  under  the  old,  as  an  exception  to 
matters  of  impertinency  and  irrelevancy.*  Such  matters,  if 
objected  to,  must  be  struck  from  the  pleading  on  motion,  and 
cannot  be  demurred  to ;  unless,  indeed,  the  entire  cause  of  action 
or  ground  of  defense  be  irrelevant  or  insufficient,  in  which  case, 
as  in  a  pleading  at  law,  a  demurrer  will  be  jDroper  to  test  the 
sufficiency  of  the  pleading.  And  see  further,  post,  §  5  of  this 
chapter,  as'  to  the  cases  in  which  it  will  be  proper  to  take  the 
objection  by  motion  to  strike  out  irrelevant  matter,  and  for  judg- 
ment on  an  irrelevant  answer ;  and  where  the  proper  course  will 
be  to  raise  the  objection  on  demurrer. 


SECTION  II. 

WHAT  MATTERS  IN  THE  COMPLAINT  MAY  BE  DEMURRED  TO. 

The  Code  defines  six  several  causes  for  which  an  objection  may 
be  taken  to  the  complaint  by  demurrer.     They  are  as  follows : 

The  defendant  may  demur  to  the  complaint,  when  it  shall  appear 
upon  the  face  thereof,  either: 
[*658]       *  1.  That  the  court  has  no  jurisdiction  of  the  person  of 
the  defendant  or  the  subject  of  the  action ;  or, 

'  Alfred  v.    Watkins,  1  Code  R.  N.  »  p^ycg  y.  Brown,  3  How.  Pr.  395,  7 

S.  343.  Barb.  S.  C.  413. 

^  Ogdensburgh    Bank    v.    Paige,    2  ^  Cohh  v.   Frnzee,  4  How.  Pr.  414; 

Code  R.  75.  Watson  v.  Uusaon,  1  Ducr,  243. 


736  DEMURRER.  [CH.   VII. 

2.  Tliat  tlie  plain tiflF  has  not  legal  capacity  to  sue ;  or, 

3.  That  there  is  another  action  pending  between  the  same  parties, 
for  the  same  cause  ;  or, 

4.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant ;  or, 

5.  That  several  causes  of  action  have  been  improperly  united;  or, 

6.  That  the  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.' 

It  is  to  be  observed  in  the  first  place,  that,  in  order  to  enable 
the  defendant  to  avail  himself  of  the  objection  by  demurrer,  the 
defect  must  appear  "  upon  the  face ' '  of  the  complaint.  It  must 
be  such,  that  admitting,  for  the  purpose  of  the  argument,  all  the 
facts  to  be  true,  yet  the  complaint  is  insufficient  to  enable  the 
plaintiff  to  recover  for  one  of  the  above  causes  as  specified  in  the 
Code.     And : 

1st.  Want  of  jurisdiction. — At  common  law,  an  objection  to 
the  jurisdiction  was  commonly  taken  by  plea  in  abatement.  It 
might,  however,  be  shown  under  the  general  issue,  as  that  there 
was  no  court  in  the  county  which  has  jurisdiction  of  the  case.' 
And,  generally,  in  courts  of  inferior  jurisdiction,  the  want  of 
jurisdiction  was  fatal  to  the  suit  at  any  stage  of  the  proceeding 
without  any  plea  or  objection.'  The  defendant,  however,  might 
plead  to  the    jurisdiction  if  he  thought  proper,  and   this   was 

esteemed  the  better  course.* 
[*659]  *In  equity,  if  the  want  of  jurisdiction  was  apparent  on 
the  face  of  the  bill,  the  proper  course  for  the  defendant 
was  to  demur  to  the  relief.  These  causes  of  demurrer  were  vari- 
ous ;  man  y  of  them  were  peculiar  to  the  practice  in  equity,  and, 
since  the  union  of  law  and  equity  in  our  courts,  have  no  farther 
application  to  our  system.  Thus,  a  demurrer  would  lie  to  a  bill 
for  want  of  equity  to  sustain  the  jurisdiction,  when  there  was  no 
sufficient  ground  shown  in  the  bill  for  the  interference  of  a  court 
of  equity.  And  whenever  it  appeared  that  the  plaintiff  had  an 
adequate  remedy  at  law,  a  demurrer  would  lie  to  the  relief ;  as 
if  an  action  should  be  brought  for^the  recovery  of  the  possession 
of  land,  or  for  the  payment  of  a  lost  note,  or  to  decide  upon  the 
validity  of  a  will  of  real  estate :  the  proper  tribunal  in  all  these 
cases  being  a  court  of  law,  a  court  cf  equity  having  no  jurisdiction.* 

>  Code,  ^  144.  ••  See  De  Witt  v.  Buchanan,  54  Barb. 

«  5  Mass.  124,  3  Johns.  113.  31,  and  ante,  649,  mnrff  p. 

8  1  Chit.  PI.  442,  2  Cow.  Treat.  668.  *  Story's  Eq.  PI.,  §§  474  to  478. 


SEC.  II.]  TO   THE   C02IPLAIXT.  737 

So  too,  tlie  complaint  was  required  not  only  to  state  a  case 
properly  within  the  cognizance  of  a  court  of  equity,   but  the 
amount  claimed  or  the  value  of  the  property  in  controversy  must 
be  not  less  than  one  hundred  dollars,  exclusive  of  costs,  m  order 
to  -ive  the  court  jurisdiction ; '  and   in   all   cases  the  bill  was 
required  to  show  affirmatively  that  the  case  was  withm  the  appro- 
priate jurisdiction  of  a  court  of  equity  ;  nor  was  the  defect 
r*660]  cured  by  any  waiver,  *or  even  by  the  consent  of  the  parties, 
so  as  to  confer  a  jurisdiction  not  vested  by  law.'     These 
principles,  it  will  be  perceived,  applied  exclusively  to  the  court 
of  chancery;  and  since  the  abrogation  of  that   court,   and  the 
establishment  of  an  miiform  method  of  proceeding  in  civil  actions, 
thev  are  no  longer  applicable  in  practice.     Where,  too,  upon  the 
face  of  the  bill  there  was  no  remedy,  either  at  law  or  in  eqmty,  a 
demurrer  to  the  relief  was  also  proper;  as  if  a  biU  sought  to 
recover  back  iftoney  which  had  been  voluntarily  paid  by  a  party 
upon  a  suit  being  threatened,  or  brought,  and  his  defense  to  the 
suit  was  that  there  was  fraud  in  the  transaction  on  which  the  suit 
was  brought,  or  to  be  brought,  the  bill  would  be  demurrable,  not- 
withstanding he  should  state  in  his  bill  that  at  the  time  when  he 
made  the  payment  it  was  under  a  protest  that  he  would  seek 
redress  in  equitv,  for  in  such  case  it  does  not  appear  but  that  the 
defense  might  have  been  effectually  sustained  at  law,  and  if  so  it 
would  have  been  his  duty  to  make  it  in  the  suit  at  law."     In  this 
class  of  cases,  where  the  complaint  shows  that  the  plaintiff  has  no 
remedy  at  all,  a  demurrer  will  be  proper  under  the  Code. 
■  Jurisdiction  as  to  the  subject-matter.     A  demurrer  under  the 
Code  to  the  jurisdiction  of  the  subject-matter  of  the  action  will 
lie  in  those  cases  in  which  such  subject-matter  is  not  properly 
cognizable  by  any  court  of  justice  ;  as  where  the  subject- 
[^-661]  matter  *is  entirely  of  a  political  nature,  and  theretore 
12  R    S    173,  §37.     Tins  provision.    Previously  conflicting  cases  of^^^^^^^ 

itlTas  Wl.eld,tB  still  applicable  ^^     l-^f:^:^^!^^^^^^^^^^ 
a  suit  in  the  nature  of  a  creditor  s  bill     ^eversM  ot  reversed,  38 

under  the  Code  ;  and  Justice  Marvin,     ^ T lif 'i5  Abb  65  The  special  term 

missed  a  complamtm  such  a  case  be^  ^'proved    \rv  Braman  v.  Johnson,  ^^ 

cause  the  j udgnieut  which  the  plamtitt  a^n'roN^ea 

souo-ht  to  satisfy  was  less  than  !t,100  ^^o'T'-j't^l  c\^  Vr  39 

rThls  section  is  repealed  by  Laws  of  1  Barb^  C   .  Pr.  3J 

\883.  chap.  400,  §  39,  p.  859,  settling  the  »  Story  3  E.i-  PL.  ^  48d. 

93 


738  DEMUEEEE.  [CH.  VII. 

constitutes  a  fit  subject  for  negotiation  or  treaty  by  the  exec- 
utive department  of  the  government.'  Cases  arising  under 
foreiirn  treaties,  which  involve  controversies  or  considerations 
purely  of  a  political  or  sovereign  character,  or  purely  executory 
by  the  governments  themselves,  would  be  held  to  be,  from  their 
very  nature  and  character,  incapable  of  being  enforced  in  any  of 
the  courts  of  the  United  States.* 

A  State  court  has  no  power  to  annul  the  judgment  or  determine 
the  extent  of  the  jurisdiction  of  the  federal  courts."  Nor  can  a 
State  court  enjoin  a  judgment  of  a  circuit  court  of  the  United 
States  or  stay  proceedings  under  it.*  Nor  can  it  entertain  juris- 
diction over  acts  done  by  an  officer  of  the  United  States  in  his 
official  capacity.'  Nor  in  a  suit  instituted  to  restrain  tlie  infring- 
ment  of  a  patent  right;  and  consent  cannot  center  such  jurisdic- 
tion." 

[An  action  lies  in  the  State  courts  for  damages  sustained  by 
the  plaintiflP,  in  consequence  of  false  statements  made  by  defend- 
ant for  the  purpose  of  preventing  sales  by  plaintiff,  and  which  do 
actually  prevent  such  sales  by  him,  although  defendant  claims  to 
hold  a  patent  giving  him  the  sole  right  to  use  a  particular  article 
which  he  claims  plaintifl's  resembles.  No  question  of  patent 
arises  in  such  action.''] 

In  general,  the  fact  that  the  vrojperty  is  not  within  the  jurisdic- 
tion constitutes  no  bar  to  a  proceeding  for  equitable  relief,  if  the 
person  is  within  the  jurisdiction.  But  questions,  it  is  said,  may 
arise  under  a  bill  respecting  funds,  or  other  things,  in  a  foreign 
country,  so  purely  local  that  a  court  of  equity  in  another  country 
might  very  properly  decline  to  interfere,  and  remit  it  to  the 
domestic  forum.*  [The  courts  of  this  State  have  jurisdiction  of 
actions  for  the  specific  performance  of  contracts  to  convey  real  estate 
in  other  States.*     Although  the  doing  so  is  a  matter  of  discre- 

1  Story's  Eq.  PI.,  ^  468.  7  N.  Y.  353  ;  Allen  v.  Addington,  7 

■  Story's  E(i.  PI.,  §  469.  Wend.  9,  as  reversed  11  id,  374  ;   Wil- 

3  5  Crancli,  115.  liafns  v.   Wood,  14  id.  126;  llvhbard  v. 

4  7  Crancli,  271.  Briggs,  31  N.  Y.  518,  529;  Viele  v. 
s  6  Wheat.  598.  Oofi8, 49  Barb.  96,  98  ;  Kendall  v.  Stone, 
«  3  Comst.  9,  7  Jolins.  144,  38  Barb.     5  N.  Y.   14.  as  to  wliether  the  action 

213,  214.  lies  upon  the  merits. 

"  Show  v.  Jndson,  38  Barb.  210,  and  >"  6    Cranch,    158 ;    2     Paige,    402  ; 

Bee  Cmin  v.  Petrc,  6  IHII,  523  ;  Benton  Storv's  Ei].  PL,  §  489. 

V.  Pratt,  3  Wend.  386  ;  Pardl  v.  IM-  »  3   Storv's   V.q.   Jur.,  ^§    743,   744  ; 

fort</,  63  Penn.  St.  46  ;  White  v.  Merritt,  Bailey  v.  lli/der,  10  N.  Y.  363 ;  j:cicton 


SEC.  II.]  TO   THE   COMPLAIN'T.  739 

[■■■■002]  tion.']  *  Tlie  supreme  court  has  original  jnrisdiction  of  all 
actions,  real  and  personal,  arising  within  the  State,  and  of 
all  transitory  actions,  wherever  the  cause  of  action  may  have 
arisen."  It  has  been  held  in  one  case  that  the  statute  makino; 
actions  of  trespass  for  injuries  to  the  person  local,  has  no  reference 
to  actions  brought  for  such  trespasses  committed  out  of  the  State, 
and  has  not  taken  away  the  jurisdiction  of  our  courts  to  entertain 
them.'  But  trespasses  or  injuries  to  lands,  committed  in  another 
State,  are  not  within  the  jurisdiction  of  our  State  courts.*  Per- 
sonal wrongs  committed  by  an  officer  of  the  navy,  while  at  sea, 
and  engaged  in  the  public  service,  are  within  the  jurisdiction  of 
the  State  courts.*  And  so  in  cases  of  marine  torts,  as  for  a  col- 
lision on  the  high  seas,  courts  of  common  law  ha^-e  concurrent 
jurisdiction  with  courts  of  admiralty  ;*  and  the  superior  and 
supreme  courts  have  concurrent  jurisdiction  ^^•ith  the  courts  of  the 
United  States  in  questions  of  salvage,  and  are  competent  to  aiford 
a  remedy.'  And  our  State  courts  have  also  jm-isdiction  between 
a  State  and  citizens  of  another  State.* 

Courts  of  limited  jurisdiction  are  those  Avhich  are  circumscribed 
in  the  exercise  of  their  powers  within  certain  local  bounds,  such 
as  a  town,  city  or  county;  or  are  confined  to  the  cognizance  of 
certain  descriptions  of  actions,  being  regulated  either  by 
["^■•063]  the  amount  *  claimed,  the  character  of  the  parties,  the 
nature  of  the  cause  of  action,  or  the  locality  in  which  it 
arose."  So  far  as  inferior  courts  of  limited  jurisdiction  are  con- 
cerned, the  proceedings  should  show  affirmatively  that  the  court 
has  jurisdiction.'"  The  jurisdiction  is  never  presumed  until  the 
contrary  appears,  as  is  the  case  in  a  superior  court."  If  such 
jurisdiction  be  not  shown  in  the  pleadings  it  will  be  a  ground  for 
demurrer  under  the  Code ;  and  even  if  the  objection  is  not  thus 
taken,  a  judgment  for  the  plaintiff  will  still  be  invalid  and  void." 

V.  Branson,  13  id.  587 ;  Cleveland  v.  *  G  Hill,  83. 

BarrUl,   25    Barb.    532 ;    Gardner    v.  ^  7  Hill,  95. 

Or/den,  22  N.  Y.  327;  Fenner  v.  San-  «  18  Johns.  257. 

horn,  37  Barb.  610 ;  Angus  v.  A7Ujus,  ■'  2  Sandf.  379  ;  5  Barb.  S.  C.  209. 

We.st's  Ch.   23,    and    note  ;    Strntton  «  20  Wend.  192  ;  2  Hill,  159. 

V.  Davidson,  1  Russ.  &   Mylne,    484,  »  1  Burr.  Pr.  36. 

and  Dunlap's  note,  ]i.  485.  '"  4  Joluis.  292. 

'  Mariposa  Co.  v.  Garrison,  26  How.  "  1  Hill,  130. 

4 18  1'  2  id.  159  [3  X.  Y.  193  ;  4  id.  274 ;  36 

-  Graham  on  Jurisdiction.  Barb.  212  ;  15  Abb.  78.] 

3  17  Wend.  323. 


740  DEMURKER.  [CH.  VII. 

In  a  superior  court,  however,  jurisdiction  will  be  presumed,  and 
a  demurrer  will  not  lie  for  the  reason  that  jurisdiction  is  not 
affirmatively  shown.  If  the  want  of  jurisdiction  does  not  appear, 
the  objection,  if  any  such  exist,  may  be  raised  by  answer,*  or  if 
not  thus  raised  the  judgment  will  be  set  aside  at  any  subse(|uent 
stage,  whenever  such  want  of  jurisdiction  shall  appear."  But, 
under  the  Code,  as  has  been  observed  on  a  former  page,'  it  is  not 
necessary  now,  in  pleading  the  judgment  of  an  inferior  court  of 
limited  or  special  jurisdiction,  to  set  forth  the  facts  conferring 
jurisdiction,  and  a  demurrer,  therefore,  will  not  lie  now,  as  it 
formerly  would,  for  that  cause;  a  general  averment  of  jurisdiction 

is  sufficient. 
L*664:]       ^Jurisdiction  as  to  the  2^&'^son  of  defendant.^  —  If  a 

want  of  jurisdiction  appear  also  in  this  respect  the  defend- 
ant may  demur.  We  have  briefly  noticed  above  some  of  the 
cases  in  which  our  State  courts  have,  and  have  not,  jurisdiction 
of  the  subject-matter  of  an  action,  and  have  seen  generally  that 
they  have  jurisdiction  in  all  cases,  whether  legal  or  equitable, 
where  the  person  of  the  defendant  is  within  the  jurisdiction  of 
the  court,  no  matter  where  the  cause  of  action  arose,  except  in 
that  class  of  cases  at  law  heretofore  denominated  local,  as  tres- 
pass to  land,  ejectment,  etc.,  etc.,*  in  which  cases  the  subject-matter 
of  the  relief  claimed,  or  of  the  injury  complained  of,  must  be 
within  the  territorial  jurisdiction  of  the  court. 

There  is  also  a  certain  class  of  cases  in  which  the  court  exer- 
cises jurisdiction  over  the  right  of  parties  who  are  not  within  the 
jurisdiction  of  the  court  and  personally  amenable  to  process,  but 
who  are  either  necessary  or  proper  parties  defendants  to  an  action. 
Thus,  where  a  defendant  is  a  proper  party  to  an  action  relating 
to  real  property  in  this  State,  or  the  subject  of  the  action  is  real 
or  personal  property  in  this  State,  and  the  defendant  has  or  claims 

a  lien  or  any  interest  therein,  or  the  relief  demanded 
[*665]  *  consists  in  excluding  the  defendant  from  any  interest  or 

'  Code,  §  147.  be  exempted  from  jurisdiction  of  State 

'Code,  ij  144;  1  Hill,  130.  tribunal,  6   Wend.   ?;.',?>,   10   id.  50,  7 

»  Ante,  pages  270,  271,  marg.  p.  Pet.  U.  S.  270,  8  id.  324,  5  Barb.  S.  C. 

*  As  to  privilege  from  aiTest  of  the  115. 

person,  and  in  what  cases  the  court  does  ^  And  so,  also,  for  partition  and  other 

not  acquire  jurisdiction,  see  Graham's  actions  and  claims  relative  to  real  estate 

Pr.  12o-14i.     And  see,  aa  to  privilege  and  the  title  thereof, 
of  foreign  consul,  ambassador,  etc.,  to 


SEC.  II.]  TO   THE   COMPLAINT;  741 

lieu  therein ;  or  wliere  tlie  defendant,  tliougli  a  non-resident 
of  the  State,  has  property  therein,  and  the  cause  of  action  arises 
on  C(jntract ;  or  tlie  defendant  is  a  foreign  corporation,  and  has 
property  in  this  State,  or  the  cause  of  action  arose  therein,  in 
these  various  cases  the  court  will,  exercise  jurisdiction  over  the 
absentee  or  non-resident  defendant,  in  respect  to  such  property  or 
cause  of  action ;  and  the  Code  particularly  j^rescribes  the  manner 
of  the  service  of  process  upon  such  defendants.'  This  is  similar 
to  the  former  manner  of  serving  process  upon  absent  defendants 
in  suits  in  equity,  and  the  rule  is  now  made  uniforjn  and 
extended  to  all  cases.  At  common  law,  before  a  judgment  could 
be  pronounced  against  the  person,  the  defendant  must  be  in 
court,  either  upon  its  process  or  by  voluntary  submission  to  its 
jurisdiction.  If  not  so  in  court,  he  might  plead  to  the  jurisdic- 
tion of  the  person  if  he  had  notice  of  the  suit  and  chose  to 
appear.  Service  of  process  out  of  the  territorial  jurisdiction  of 
the  court  was  at  common  law  a  nullity,  and  n:iere  personal  service 
of  process  on  a  defendant  out  of  tlie  State  is  void  as  the  basis  of 
any  judicial  proceeding,  and  confers  no  jurisdiction  over  the 
defendant."     Even  the  personal  service  of  a  summons  upon  the 

president  of  a  foreign  corporation,  who  happens  to  be 
[*666]  temporarily  in  this  State,  and  does  not  voluntarily  "^appear, 

it  has  been  held,  gives  no  jurisdiction  of  the  defendant 
(the  corporation)  for  the  purpose  of  rendering  a  personal  judg- 
ment upon  contracts  made  in  this  State,  or  for  debts  due  to  resi- 
dents of  this  State.  So  held  by  Justice  Sill,  at  special  term,  in 
Jhdhert  v.  llie  Hope  Mutual  Insxirance  Comjyany,^  and  affirmed 
at  general  term  on  appeal."  The  only  iiipthod  of  acquiring  juris- 
diction in  such  cases  is  that  prescribed  by  the  Code,  by  order  of 
publication,  etc.,  pursuant  to  section  135,  Thus,  in  the  case  last 
cited,  if  the  defendant  (a  foreign  corporation)  had  property  in 
this  State,  or  if  the  cause  of  action  had  arisen  therein,  the  plain- 
titi"  might  have  obtained  an  order  of  publication,  and  having 
published  it  for  the  requisite  length  of  time,  and  served  copy 
summons  and  complaint  by  mail  (or  made  personal  service  out  of 

'  Code,  S;  135.  *  Id.  415  \Bates  v.  New  Orleans,  etc., 

2  Litchfield  v.   Boswell,  5  How.  Pr.    4  Abb.  72,  affirmed,  30  Barb.  159,  20 
346.  How.  62]. 

8  4  How.  Pr.  275. 


742  DEMURRER.  [CII.  VII. 

the  State  in  lieu  of  publication  and  deposit  in  post-office),  the 
court  would  have  acquired  jurisdiction  to  render  the  judgment. 

The  court  will  also  exercise  jurisdiction  over  an  absentee 
defendant,  in  an  action  for  divorce,  in  the  same  manner,  and  in 
the  cases  prescribed  by  law.* 

The  cases  in  which  the  court  has  jurisdiction  by  statute  to  grant 
a  divorce  for  adultery,  are:  1st.  "Where  both  husband  and  wife 
were  inhabitants  of  this  State  at  the  time  of  the  commission  of 
the  oifense;  2d.  Where  the  marriage  was  solemnized 
[■^G67J  *  or  took  place  within  this  State,  and  the  injured  party,  at 
the  time  of  the  commission  of  the  offense,  and  at  the  time 
of  exhibiting  the  bill  of  complaint,  is  an  actual  inhabitant  of  this 
State ;  3d.  Where  the  oifense  was  committed  in  this  State,  and 
the  injured  party,  at  the  time  of  exhibiting  the  bill  of  complaint, 
is  an  actual  inhabitant  of  this  State.'' 

Under  the  former  practice  in  chancery,  which  required  the  bill 
to  show  jurisdiction,  it  was  necessary  for  the  complainant  to  state 
facts  in  the  bill  sufficient  to  bring  the  case  within  one  of  the  above 
heads."  This  does  not  seem  to  be  necessary  under  the  uniform 
rule  of  pleading  adopted  by  the  Code.  Unless  an  absolute  want 
of  jurisdiction  appears  on  the  face  of  the  complaint  a  demurrer 
will  not  lie,  jurisdiction  being  presumed  in  a  superior  court  till 
the  contrary  appears." 

So,  too,  by  a  former  rule  in  the  chancery  practice,^  the  bill  must 
positively  aver  that  the  adultery  was  committed  without  conniv- 
ance, that  not  more  than  five  years  have  elapsed  since  discovery,  m\^ 
plaintiflt"  has  not  voluntarily  cohabited,  since  discovery,  with  de- 
fendant ;  or,  if  defendant  is  living  in  open  adultery  with  another 
person,  that  five  years  have  not  elapsed  since  the  commencement 
of  such  adulterous  intercourse.*  None  of  these  matters,  under 
the  new  rules  of  the  supreme  court,  need  now  be  alleged 
["^GGS]  in  the  complaint,  but  the  plaintiff  may  (and,  *  unless  stated 
in  the  complaint,  and  verified  as  prescribed  by  the  Code, 
must)  supply  the  omission  by  his  affidavit,  in  order  to  show  him- 
Eelf  entitled  to  judgment,  pursuant  to  the  statute.'' 

1  Code,  S  135,  5tli  subdivision.  *  Rule  1G3. 

"■  2  R.  S.  144.  §  38,  2  Edm.  St.  150.  «  2  R.  S.  147,  §  55. 

8  9  Pai(?e,  550.  ^  Sup.  Court  Rule,  1870,  No.  87. 

<  1  Hill  130. 


SEC.  II. J  TO   THE   COMPLAINT.  743 

2.  The  plaintiff  has  not  legal  capacity  to  sue.  —  This  is  the 
second  ground  of  demurrer  to  the  coniphiint  speciiied  in  the  Code. 
Objections  to  the  person  of  the  plaintiff  that  he  has  not  legal 
capacity  to  sue,  as :  1st.  That  the  plaintiff'  is  not  entitled  to  sue, 
by  reason  of  some  personal  disability ;  or,  2d.  That  the  plaintiff 
has  no  title  to  the  character  in  which  he  sues,  were  also,  at  com- 
mon law,  usually  raised  by  plea  in  abatement.  In  equity  they 
were  the  proper  subjects  of  a  demurrer,  if  apparent  on  the  face 
of  the  complaint,  and  so  also  by  the  Code. 

Thus,  under  the  first  class,  if  it  appear  by  the  complaint  that 
the  plaintiff  is  an  infant,  or  married  woman,  or  idiot,  or  lunatic, 
and  is  thus  incapable  of  instituting  a  suit  alone,  and  no  next  friend 
or  committee  is  named  in  the  complaint,  the  defendant,  in  analogy 
with  the  former  equity  practice,  may  demur.'  If  it  does  not 
appear  on  the  complaint,  the  objection  (formerly  taken  by  plea) 
may  be  raised  by  answer.  If  not  so  taken  the  objection  in  all 
subsequent  proceedings  is  held  to  be  waived.'  And  so  in  cases 
where  a  trustee,  to  whom  the  demand  has  passed,  or  the 
[*669]  assignee  of  a  chose  in  action,  *  is  required  to  sue  in  his 
own  name  for  the  collection  of  such  demand.  If  that  fact 
should  appear  on  the  face  of  the  complaint,  and  the  acting  be  in 
the  name  of  the  assignor,  insolvent  debtor,  or  other  person  not 
having  legal  capacity  to  enforce  the  collection  of  the  demand,  the 
defendant  may  demur. 

And  so,  too,  under  the  second  above  class,  namely,  that  the 
plaintiff  has  no  title  to  the  character  in  which  he  sues,  the 
defendant  may  demur.  As  if,  for  example,  it  appear  upon  the 
face  of  the  complaint  that  the  plaintiff  sues  as  administrator 
under  void  letters  of  administration,  or  in  virtue  of  a  grant  of 
administration  in  a  foreign  country,  the  objection  may  be  taken 
by  demurrer,  for  the  reason  that  the  plaintiff  has  no  right  or 
legal  capacity,  under  such  letters,  to  sue  in  our  courts  ; '  [but  in  a 
suit  by  a  corporation,  its  incorporation  need  not  be  averred.*] 

Another  action  pending  letween  the  saine  parties  for  the  same 

I  Story's  Eq.  PI.,  §  494  ;  Uastings  v.  ^  Mitf.  Eq.  PI.  155;  Cooper's  Eq.  PL 

McKinli'v,  1  Smith's  Com.  PI.  273  [af-  169, 170. 

firmed,  Seld.  notes,  Oct.,  1853,  p.  19j.  *  Phcenix  Bank  v.  Donnell,  40  N.  Y. 

-  Cbde,  i^  148  ;  Hastings  v.  McKinley,  411. 
1  Smith's  Com.  PI.  273. 


744  DEMUEEEK.  [CH.  YII. 

cause. —  This  also  is  a  ground  for  demurrer  by  the  Code,  if  the 
defect  appears  upon  the  face  of  the  complaint;  otherwise,  objec- 
tion must  be  taken  by  answer,  or  will  be  deemed  to  be  waived. 
The  objection  can  be  taken  in  no  other  way.  Accordingly,  in  an 
action  for  partition,  a  motion  by  plaintiff  to  set  aside  the  proceed- 
ings in  an  action  for  partition  commenced  by  the  defendant,  on 
the  ground  that  an  action  for  the  partition  of  the  same  premises 
had  been  previously  commenced  by  the  plaintifi',  was  denied ;  it 

being  held  that  the  plaintLfi''s  remedy  was  to  set  forth,  in 
[*670]  answer   to  the  suit   *last   commenced,  the  fact  of  the 

pendency  of  the  first  suit.' 
This  ground  of  objection  will  not  ordinarily  appear  upon  the 
face  of  the  complaint ;  and  the  defendant  will,  therefore,  usually 
be  obliged  to  set  it  up  in  his  answer.  And  though  the  second 
action  thus  pleaded  must  in  general  be  between  the  same  parties 
and  for  the  same  cause  of  action,  yet  it  is  said  that  there  are 
exceptions  to  the  rule,  as  where  separate  actions  for  the  same 
single  act  of  trespass  are  brought  against  several  defendants,  the 
one  last  served  may  avail  himself  of  the  pendency  of  the  action 
against  the  first ;  and  so  a  recovery  against  one  of  several  parties 
to  a  joint  tort  frequently  precludes  the  plaintiff  from  proceeding 
against  any  other  party  not  included  in  the  action." 

In  an  action  on  a. promissory  note,  a  demurrer,  or  answer,  of 
a  pendency  of  a  suit  for  the  same  cause  of  action  in  another  State, 
is  bad.' 

The  same  rule  was  adhered  to  in  the  New  York  superior  court, 
in  Cook  V.  Litchfield.*'  The  provisions  of  the  Code,  it  was  said, 
have  not  altered  the  rule  of  law  that  the  pendency  of  a  suit  in  a 
court  of  the  United  States,  or  of  another  State,  is  no  defense.    And 

this  decision  has  been  affirmed  by  the  court  of  appeals.* 
[*671]       *  4.  That   there  is  a   defect  of  parties,  plaintiff  or 

defendant.  —  This  is  the  fourth  ground  of  demurrer  to 
the  plaintiff's  complaint  provided  by  the  Code.  The  objection, 
in  this  case,  must  be  taken  by  demurrer,  if  it  appear  on  the  face 

'  ITi'irnfnger  v.  Hornfager,  6  How.  '  Borrows  v.  Miller,  5  How.  Pr.  51, 

Pr.  279,  per  Parker,  J.  per  Edmonds,  J. 

«  See  Monell's  Pr.  137  and  1.38,  and  *  5  Sandf.  830. 

cases  cited ;  but  see  contra,  Barrett  v.  *  Court   of   Appeals,   Dec.  31,  1853. 

Third  Ave.,  etc., 451:^. Y.(i28;B7'insmead  [See  ante,  389,  marg.  p.,  note,  for  ex- 

V.  Ha/rrison,  3  Eng.  Rep.  383, 390,  note,  caption  to  this  rule.] 


SEC.  II.]  TO  THE   COMPLAINT.  745 

of  the  complaint,  otherwise  bj  answer ;  and  if  not  taken  either 
way,  it  will  be  deemed  waived,  and  the  defendant  will  not  after- 
ward be  permitted  to  raise  it.'  [The  defect  of  parties  provided 
for  in  section  144  of  the  Code,  is  a  deficiency  of,  and  not  too 
many  parties ;  the  joinder  of  too  many  parties,  as  defendants, 
when  there  is  no  misjoinder  of  subjects,  is  no  ground  for  demur- 
rer by  any  one  defendant  against  whom  the  complaint  contains  a 
good  cause  of  action."  If  the  complaint  does  not  state  a  good 
cause  of  action  in  favor  of  one  of  the  plaintiffs  the  defendant 
may  demur,^  but  in  such  case  he  must  specify  the  plaintiff  to 
whom  he  objects.*] 

I  have  already  considered  at  length  the  question  of  the  misjoinder 
and  nonjoinder  of  parties  in  an  action  under  the  Code,  and  who  are 
proper  and  necessary  parties  to  a  complaint.  It  Mall  not  be  nec- 
essary^, therefore,  to  review  this  branch  of  the  subject  here.  It 
may  be  said,  generally,  that  the  want  of  necessary  parties,  that  is, 
such  as  must  join  or  be  joined,  plaintiffs  or  defendants,  is  always 
to  be  taken  advantage  of  by  demurrer  or  answer.  The  same  rule 
is  applicable  to  the  misjoinder  of  parties ;  as  if  a  person  having 
no  interest  in  the  subject  of  the  action  is  united  as  plaintiff,  or  a 
person  against  whom  no  decree  can  be  made  is  joined  as  defend- 
ant. If  the  misjoinder  is  of  parties  as  plaintiffs,  according  to  the 
equity  rule  all  the  defendants  may  demur.  But  if  the  misjoinder 
is  of  parties  as  defendants,  those  only,  according  to  tlie  same  rule, 
can  demur  who  are  improperly  joined,  or  against  whom  the  com- 
plaint states  no  cause  of  action.^ 

This  rule  w^as  fully  recognized  in  our  own  courts  of 
[*672]  equity  before  the  Code  ; '  and  it  is  considered  *  by  Justice 
Hakris,  in  Brownson  and  Wife  v.  Gifford,''  to  be  still  a 
rule  of  pleading  under  the  new  system. 

If  a  demurrer  is  put  in  for  want  of  necessary  parties,  it  should 
point  out  who  are  the  proper  parties  to  the  action,*  that  is,  if  from 

'  BaggoU  v.  Boulger,  3   Duer,    160.  ^  Riclitmyer  v.  Richtmyer,  50  Barb, 

\pe'puy  V.  ^rong,  87  N.  Y.  372,  4  Abb.  55  ;  Scott  v.  Qmrnsey,  GO  id.  1G4. 

N.  S.  o40, 3  Keyes,  003;  Patchiti  v.  Peck,  *  RicMmyer  v.  Richtmyer, oO  Barb.  55. 

38  N.  Y.  39  ;  Marvin  v.  Inglis,  39  How.  ^  RicMmyer  v.  Richtmyer,  50  Barb, 

329  ;  Tell  v.  Beyer,  38  N.  Y.  161 ;  see  55,  Story's  Eq.  P].,  §  544. 

post,  680,  marg  p.]  «  5  Paige,  254,  2  Barb.  Ch.  106,  id.  618. 

-  Richtmyer  v.  Richtm,yer,  50  Barb.  "^  8  How  Pr.  389  ;  see  also  P\nckiiey 

55  ;  Farmer  v.  JFarmer,  1  House  Lords'  v.  Wallace,  1  Abb.  Pr.  82. 

Cases,  734.  *  Slorv's  E^.  PI.,  §  5 13,  and  see  post, 

94 


746  dp]Mgeki:r.  [ch.  vii. 

tlie  matter  in  the  complaint  it  appears  who  should  Le  joined. 
This  is  in  analogy  with  one  or  two  decisions  mider  the  Code  in 
respect  to  what  matters  must  be  alleged  in  the  answer  in  such 
cases.*  It  is  also  in  analogy  with  the  practice  at  law,  where  a 
plea  in  abatement  was  proper  for  defect  in  parties.  The  plea  was 
required  to  give  the  plaintiff  a  better  writ,  and  to  point  out  who 
the  parties  were  who  ought  to  be  joined.  But  if,  from  the  com- 
plaint, it  does  not  appear  who  are  the  proper  parties  the  rule 
cannot  apply.  Thus,  a  declaration  commencing  A,  B  and  Co.,  is 
bad  on  demurrer,  for  it  appears  that  there  are  some  other  persons 
who  ought  to  be  joined  as  plaintiffs ; '  but  the  demurrer  is  not 
required  to  specify  who  those  persons  are. 

In  equity,  as  w^e  have  seen,  if  the  parties  not  brought  before 
the  court  are  necessary  and  proper  parties,  the  exception,  if  not 
taken  in  the  answer  or  by  demurrer,  might  be  raised  at  the  hear- 
ing.    And  it  seems  a  similar  practice  is  recognized  in  some  cases 
by  the  Code ;  for  although  by  section  148,  if  the  objection 
[*6T3J  is  not  taken  by  answer  or  demurrer,  *  "  the  defendant 
shall  he  deemed  to  liwm  waived  the  same^''  yet,  by  section 
122  (which  it  is  said  is  the  controlling  section  in  determining 
whether  a  demurrer  for  defect  of  parties  is  well  taken),'  when  a 
complete  determination  of  the  controversy  cannot  be  had  without 
the  presence  of  other  parties,  the  court  unust  cause  them  to  he 
hrought  in.     If  these  sections  are  taken  together,  they  may,  per- 
haps, be  construed  to  mean,  that  the  defendant,  at  the  hearing,  is 
estopped  from  setting  up  a  defect  of  even  necessary  parties  to 
defeat  the  plaintiff's  claim  for  relief,  but  if  such  objection   is 
raised,  the  plaintiff  will  be  at  liberty  to  amend  his  bill  by  adding 
parties,  if  necessary,  to  a  complete  determination  of  the  contro- 
versy, the  cause,  i  n  the  mean  time,  standing  over  for  that  ]3urpose. 
Where  the  parties  who  are  omitted  are  mere  forma)  pai-ties,  tho 
objection,  if  intended  to  be  taken  at  all,  should  be  by  demurrer  or 
answer,  for,  at  the  hearing,  the  court,  if  it  can  properly  do  so,  will 
dispose  of  the  cause  upon  its  merits,  without  requiring  such  formal 
parties  to  be  joined.*    And  such  is  the  rule  indicated  by  the  Code. 

§  4  of  this    chapter ;    Riclitmyer    v.        '  Wallace  v.  Eaton,  5  How.  Pr.  90. 
'Riclitmyer,  50  Barb.  55.  ■*  Story's  Eq.  PL.  g  542,  39  N.  Y.  237 

'  See  ante,  pages  478,  499,  marg  p.  4  Abb.  N.  S.  340. 

»  Bentley  v.  Smith,  3  Caines,  170.  «  Am.  Code,  §  122. 


SEC.  II. J  TO   THE   COMPLAINT.  747 

The  Code  provides  that  when  the  question  is  one  of  a  common 
or  general  interest  of  many  persons,  or  when  the  parties  are  very 
numerous,  and  it  may  be  impracticable  to  bring  them  all  before 
the  court,  one  or  more  may  sue  or  defend  for  the  benefit 
f^GTi]  of  the  *  whole.*  In  such  cases,  therefore,  a  demurrer  for 
defect  of  parties  will  be  improper. 
The  rule  is  illustrated  in  a  variety  of  cases  under  the  old  prac- 
tice in  equity.  Thus,  where  the  parties  aggrieved  were  a  tribe 
of  Indians,  one  could  file  a  bill  in  his  own  name  in  behalf  of  all." 
One  creditor,  as  legatee,  might  sue  in  behalf  of  himself  and  all 
others  sranding  in  the  same  situation,  and  the  others  might  come 
in  under  the  decree.'  So,  where  parties  form  a  voluntary  associa- 
tion tor  private  or  public  purposes,  and  those  who  sue  or  defend 
are  fairly  presumed  to  represent  the  rights  and  interests  of  the 
whole,  the  court  would  allow  a  bill  to  be  brought  by  some  of  the 
parties  on  behalf  of  themselves  and  all  others,  though,  if  brought 
by  the  plaintiff  alone,  a  demurrer  would  lie  for  defect  of  parties.* 
One  or  more  of  the  several  parties,  comprising  a  large  number, 
may  file  a  bill  on  behalf  of  himself  and  his  copartners  to  rescind 
a  contract,  if  it  appear  that  it  is  for  the  benefit  of  all  the  partners 
that  the  contract  should  be  rescinded.^  And  where  the  share- 
holders of  an  association  are  numerous,  and  the  property  and 
management  of  the  afi'airs  of  the  association  are  vested  in  trustees, 
it  was  held  that  a  bill  for  an  account  and  final  settlement  was 
properly  filed  by  one  of  tlie  shareholders  in  behalf  of  himself  and 
the  others.'  And  so  also  a  bill  against  the  directors  of  a 
[*67o]  mining  association  *  to  prevent  the  money  of  the  com- 
pany from  being  appropriated  to  the  use  of  any  persons 
other  than  the  general  benefit  of  the  shareholders.' 

In  Smith  v.  Lockwood,  it  was  held,  under  the  Code,  at  special 
term,*  that  where  the  party  suing  for  an  injunction  to  restrain  the 
manufacture  of  an  article  has  merely  an  interest  in  common  with 
all  others  in  the  State  who  are  engao'ed  in  the  manufacture  of  the 
same  article,  that  such  J^arty  cannot  bring  a  suit  in  his  own  name 
and  for  his  own  benefit  alone,  but  must  sue  in  behalf  of  all  others 

»  Code,  55  119.  «  2  Barb.  Cb.,  §  362. 

»  11  Paige,  607.  '  2  Mylne  &  Craig,  49,  4  Russ.  563, 

«  2  Johns.  Ch.  283,  3  id.  553.  and  see  ante,  pp.  120,  124.  126. 

*  Story's  Eq.  PL,  §  107.  *  Per  Edwards,  J.,  1  Code  R.  N.  S. 

»  Id.,  §  114.  319. 


748  DEMUEEER.  [CH.  VII- 

having  a  common  interest  with  him.  Perhaps  this  is  carrying 
the  rule  further  than  necessary.  One  of  several  persons,  how- 
ever nmnerous,  having  a  common  interest  in  obtaining  an  injunc- 
tion to  restrain  a  nuisance,  may  prosecute  such  action  without 
joining  the  others ;  though  he  may  join  the  others,  and  if  he  do 
so  the  defendant  cannot  object. 

The  like  doctrine  applies  to  cases  where  there  are  many  persons 
defendants  belonging  to  a  voluntary  association  or  other  company, 
or  sets  of  parties,  against  whom  suit  is  brought.  But  it  has  been 
held,  since  the  Code,  that  a  demurrer  will  lie  to  a  complaint  in 
an  action,  brought  by  a  member  of  an  incorporated  company  for 
the  benefit  of  the  association,  on  a  note  given  to  or  held  hy  the 
association,  without  showing  by  the  complaint  the  nature 
[*676J  of  the  common  interest  of  the  parties,  or  that  if  they  *were 
all  before  the  court  their  interest  is  such  as  would  entitle 
them  to  maintain  the  action  in  their  own  rights  or  in  their  own 
names.  It  is  not  sufficient  to  allege  that  the  other  parties  are  so 
numerous  that  it  would  be  impracticable  to  bring  them  all  before 
the  court.'  In  the  recent  case  of  Bouton  v.  The  City  of  Brooklyn^ 
at  a  general  term  in  the  second  district,  the  question  is  fully 
examined  by  Justice  Bkowk  as  to  what  cases  and  for  what  reasons 
the  courts  permit  a  plaintiff  to  commence  an  action  in  his  own 
behalf  as  well  as  in  behalf  of  all  other  persons  interested  in  the 
same  question,  and  the  rule  indicated  in  this  class  of  cases  as  to 
when  a  demurrer  would  or  would  not  lie  for  defect  of  parties. 
The  case  has  already  been  cited,  and  the  subject  generally  dis- 
cussed in  a  previous  part  of  this  M'ork,  to  which  the  reader  is 
referred." 

When  a  defendant  is  out  of  the  jurisdiction  of  the  court  and 
cannot  be  reached  by  process  of  the  court  (or  service  made  pur- 
suant to  the  cases  mentioned  in  section  135  of  the  Code),  such 
fact  stated  in  the  complaint,  and  proved  (if  denied),  constitutes 
of  itself  a  sufficient  ground  for  dispensing  with  such  person 
being  made  a  party,  and  the  court  will  render  judgment  without 
him.     Thus,  in  an  action  against  a  partnership,  all  the  partners 

'  IIahkht\.  P emberton,  A  S&nif.  657.  ally  in  cases  of    numerous  parties  to 

^  lo  Barb.  375.  suits,  plaintiffs  or  defendants.  Story's 

"  Ante,  cliap.  11,  §g  2  and  3,  pages  Eq.  PI.,  gi=  1U7  to  130. 
120,  marg.  p.  and  seq.     See  also,  geuer- 


SEC.  II.]  TO   THE   COMPLAINT.  749 

[*677]  must  be  made  parties.  But  *  if  one  of  the  partners  be 
resident  in  a  foreign  country,  and  cannot  be  brought  before 
the  court,  and  the  fact  is  so  charged  in  the  complaint,  the  court 
will  proceed  to  judgment  against  the  partners  who  are  within  the 
jurisdiction,  provided  it  can  be  done  without  manifest  injustice 
to  the  absent  partner.'  If,  however,  such  partner  has  property 
in  the  State,  and  the  action  arises  on  contract,  or  if  in  any  other 
way,  pursuant  to  section  135,  an  order  of  publication  can  be 
obtained  against  him,  he  should  be  made  a  party  and  served  with 
process  by  publication,  etc.  And  if  a  complaint  against  one 
partner,  or  joint  contractor,  show  a  cause  of  action  against  a  firm, 
and  do  not  show  the  other  partners  out  of  the  jurisdiction,  and 
not  amenable  to  the  process  of  the  court,  it  may  be  demurred  to 
for  want  of  parties, 

5.  That  several  causes  of  action  ha/i^e  heen,  ir)iproj)erly  united. 
—  Whenever  the  claims  or  causes  of  action  mentioned  in  the  com- 
plaint are  so  different  in  their  character  as  to  violate,  in  this  respect, 
tlie  general  rules  prescribed  by  the  Code,  the  objection  may  be 
taken  by  demurrer,  and,  it  has  l:>een  held,  nnust  be  so  taken,  and 
can  be  raised  in  no  other  way.*  These  general  rules  have  been 
considered,  and  the  provisions  of  the  Code  in  respect  thereto  have 
been  cited,  in  the  third  chapter  of  this  work,  to  which  the  reader 
is  referred,  entitled  Joinder  of  Actions^  and  but  one  or  two  addi- 
tional remarks  will  be  necessary  in  this  place.' 

[If  two  causes  of  action  are  improperly  joined  in  the  complaint, 
and  the  defendant  fail  to  demur,  he  cannot  take  advantage  thereof 
on  the  trial  even  by  a  motion  to  compel  the  plaintiff  to  elect  upon 
which  he  will  go."  So  as  to  a  count  in  fraud  and  one  in  warranty.* 
Trespass  upon  lands,  and  in  the  taking  of  personal  property,  may 
be  joined.'  A  complaint  in  an  award  states  but  one  cause  of 
action,  although  it  state  at  length  the  facts  out  of  which  the  sub- 
mission arose.''] 
[*678]  *  The  defect  in  the  pleadings  now  under  consideration 
is  similar  in  its  character  to  that  which,  under  the  old 
practice,  was  called  multifariousness. 

1  Cooper's  Eq.  PI.  35  ;  3  Crancli,  220.  ■»  Bloamm  v.  Barrett,  37  N.  Y.  434, 430, 

'^  Btannard  v.  Mattice,  7  How.  Pr.  4,  ^  Quintard  v.  Newton,  5  Rob.  72. 

Am.  Code,  §  147.  «  Colton  v.  Jones,  7  Rob.  164. 

^  Ante,  196,  344,  marg.  pp.  '  JDenham  v.  Stilwill,  3  Rob.  G53. 


750  DEMUEEEE.  [CII.  VII. 

It  is  of  two  kinds:  1st.  A  misjoinder  of  causes  of  suit;  that  is, 
when  tlie  claims  set  up  in  the  complaint  are  of  so  different  a  char- 
acter that  the  court  will  not  permit  them  to  be  litigated  in  one 
action.  2d.  Where  a  'pui'tj  is  brought  in  as  defendant  upon  a 
record,  with  a  large  portion  of  which,  and  of  the  case  made  by 
which,  he  has  no  connection.'  Such  an  objection  is  different  from 
that  arising  from  a  mere  misjoinder  of  claims,  and  is  nearer  like 
the  defect  of  misjoinder  of  parties. 

The  first  of  these,  that  is,  the  misjoinder  of  claims  or  causes  of 
action  between  the  same  parties,  is  specifically  provided  for  in  the 
seven  several  subdivisions  of  section  167  of  the  Code  as  amended." 
And  here  the  remark  made  in  Manchester  v.  Storrs^  in  respect 
to  a  demurrer  for  the  misjoinder  of  several  causes  of  action,  may 
be  repeated,  that  "  we  must  forget  all  rules  respecting  demurrers, 
and  regard  a  demurrer  now  as  a  pleading  created^  with  its  cliar- 
acter  and  office  defined  by  the  Code.  No  demurrer  will  lie  except 
to  a  coviplaint*  nor  for  any  other  causes  except  the  six  grounds 
specified  in  section  122  (now  144)."  It  may  be  added  that  a 
demurrer  for  misjoinder  of  causes  of  action,  wliich  can  be  classed 
under  any  of  the  subdivisions  of  section  167,  will  not  lie 
[■^'679]  *  in  any  case  other  than  those  violating  such  section.  It 
is  not,  however,  to  be  supposed  that  actions  which  do  not 
come  under  either  of  these  subdivisions  can  now  be  joined  with 
such  as  do,  as,  for  example,  an  action  for  divorce  with  an  action 
on  a  promissory  note.  Justice  Willard,  in  the  case  of  Dwhee 
V.  Saratoga  and  Washington  H.  R.  Co.^  very  properly  remarks 
that  the  commissioners  probably  had  their  ej'e  upon  actions  at  law 
when  they  framed  the  167t]i  section  of  the  Code.  There  are 
remedies  well  known  to  our  jurisprudence  which  still  exist  and 
which  cannot  be  comprised  in  either  of  the  subdivisions  of  section 
167.  All,  therefore,  which  is  settled  by  that  section  is,  that  in  the 
cases  therein  specified,  several  causes  of  action  may  be  united  in 
the  same  complaint,  if  the  rules  prescribed  for  that  purpose  in 
that  section  be  observed. 

In  cases  of  different  causes  of  action  between  the  same  parties, 

'  Story's  Eq.  PL,  §  530 ;  Brady  v.  •»  This  was   before    the    Code    was 

MeCoHkcr,  1  Conist.  214.                    "  amended. 

=  Sec  ante.  p.  18:],  344  marg.  p.  '  i  How.  Pr.  22S.  2  Code  R.  145. 
»  3  How.  Pr.  410. 


SEC.  II.]  TO   THE   COMPLAINT.  751 

other  tliaii  those  referable  to  one  of  these  subdivisions,  it  is  pre- 
sumed the  rule  as  to  a  demurrer  for  the  misjoinder  is  similar  to 
that  under  the  former  equity  practice.  The  rule  in  equity  was, 
tliat  if  the  claims  were  of  a  similar  nature,  involving  similar 
principles  and  results,  and  might  without  inconvenience  be  heai'd 
a-.id  adjudged  together,  they  might  be  joined  in  the  same  bill.' 
Such  is  doubtless  still  the  practice,  and  a  demurrer  will  only  bo 
well  taken  for  misjoinder  to  a  complaint  unithig 
[■^GSO]  *  dissimilar  or  incompatible  causes  of  action ;  as  if  a 
party  should  seek  in  the  same  action  to  set  aside  a  deed 
and  to  foreclose  a  mortgage ;  or  to  correct  a  mistake  in  a  writing 
and  to  obtain  an  injunction  on  a  claim  founded  in  a  different 
transaction ;  or  to  set  aside  a  will  and  for  partition.'*  A.  bill,  how- 
ever, was  sustained  against  a  corporation  to  establish  diiierent 
trusts,  created  by  different  instruments  and  different  donors,  at 
different  times,  for  charitable  purposes,  no  other  corporation  or 
person  being  interested."  Where,  however,  a  bill  sets  up  one 
sufficient  ground  of  relief,  and  another  distinct,  untenable  claim, 
it  has  been  held  not  to  be  multifarious.''  hi  such  a  case,  under 
the  Code,  the  latter  part  of  the  complaint  may  be  struck  out  ou 
motion.  A  mere  misjoinder  of  diiferent  causes  of  action  is  not. 
strictly  speaking,  multifariousness,^  but  such  is  the  general 
acceptation  of  the  term  ; '  and  it  is  well  settled  that  a  demurrer 
will  lie  for  such  defect.  Thus,  a  bill  against  an  executor  for  a 
legacy  and  for  the  individual  debt  of  the  testator  is  multifarious.'' 
So  a  bill  by  a  judgment  creditor  for  an  account  against  the 
deceased  creditor's  estate,  and  to  reach  lands  in  the  hands  of  a 
third  person  held  in  trust  for  the  decedent,  and  to  compel  an 
account  of  moneys  received  by  such  third  person  from  the 
administrator  on  a  judgment  fraudulently  confessed 
[*681]  by  the  decedent,  is  multifarious.®  "  But  where  the  inter- 
ests of  the  plaintiffs  are  the  same,  although  the  defend- 
ants may  not  have  a  co-extensive  common  interest,  but  their 
interest  may  be  derived  under  different  instruments  if  the  general 

'  See  ante,  pp.  190, 200,  marff.  p.  *  5  Pai.Te,  137. 

*  See  Brady  v.  McCosker,  1  Comst.        ^  3  Barb.  Ch.  433. 
214.  6 1  Comst.  231 ;   Story's  Eq.   PL,  g 

3  1  Mylne  &  Keon,  187;  RlrMmyrr  530. 
V.  Ricldmyer,  50  Barb.  55.     Seo  ante,         ■>  4  Jolins.  ('\\.  109. 
caaes  citL'd,  671,  inar<}.  p.  *  2  Barb.  Ch.  57f) ;  5  Paige,  65. 


752  DEMURRER.  [CH.  VII. 

objects  of  tlie  suit  will  be  promoted  by  their  being  joined,  the 
complaint  will  be  sustained.*  [A  joint  action  does  not  lie 
against  one  who  erects  a  nuisance  and  one  to  whom  he  transfers 
it,  the  latter  subsequently  maintaining  it.°] 

As  to  multifariousness,  strictly  so  called,  that  is,  where  one, 
or  a  part  of  the  defendants  are  able  to  say  that  they  are  brought 
in  as  parties  upon  a  record,  with  a  large  portion  of  which,  and 
the  case  made  thereby,  they  have  no  connection  whatever ;  ^  this 
also  was  the  subject  of  demurrer  under  the  former  practice.  [The 
remedy  is  by  joint  demurrer.*]  It  is  so  also  by  the  Code,  which 
by  the  last  clause  of  the  section  under  consideration*  provides  : 

"But  the  causes  of  action,  so  united,  must  all  belong  to  one  of 
these  classes,  and,  except  in  actions  for  the  foreclosure  of  mortgages, 
miist  affect  all  the  parties  to  the  action,  and  not  require  different 
places  of  trial,  and  must  be  separately  stated." 

The  causes  of  action  joined  in  the  same  complaint  must  affect 
all  the  parties  to  the  action.  A  joint  claim  against  two  defendants 
is  improperly  joined  with  a  separate  claim  against  one  of  them, 
and  either  defendant  may  demur.'  A  single  complainant,  having 
distinct  and  independent  claims  for  relief  against  two  or 
[*682]  more  persons,  cannot  join  them  *as  defendants,^  and  if  so 
joined  a  demurrer  will  lie.  But  in  some  cases  where  the 
interest  of  the  plaintiffs  is  joint,  though  the  claims  are  distinct  in 
respect  to  the  defendants,  they  may  be  joined  and  the  objection 
of  multifariousness  will  be  disallowed.*  And  generally  it  is  said 
that  there  is  no  positive  and  inflexible  rule  as  to  what  in  a  court 
of  equity  would  constitute  multifariousness,  which  is  fatal  to  the 
suit  on  demurrer,  and  the  court  will  exercise  a  sound  discretion  in 
determining  whether  the  subject-matters  of  the  suit  are  properly 
joined  or  not,  and  whether  the  parties,  plaintiffs  or  defendants, 
are  also  properly  joined  or  not.'  Tlio^e  principles,  it  must  be 
repeated,  are  only  applicable  to  the  demurrer  under  the  Code,  in 
cases  (and  they  are  mainly  or  entirely  for  equitable  relief)  which 

'  See  generally,  as  to  the  misjoinder  '  §  1G7. 

of  different    causes  of  action,   Story's  «  5  Paige,  65;  6  id.  23. 

Eq.    PI.,    ^§   530    to    538,  ante,   680,  ■>  1  3arb.  Ch.  Pr.  59. 

marfi.  p.     ^ '  ^  Ante,  pnges  128,  et  seq.,  wnrg.  p., 

'  iless  V.  Buffalo,  etc.,  29  Barb.  391.  Story's  Eq.  PI.,  i^  535.     And  see  cases 

*  Brady  v.  McCosker,  1  Comst.  221.  there  cited. 

*Eess  V.  Buffalo,  etc.,  29  Barb.  391 ;  »  Story's  Eq.  PL,  §  539. 
Bee  post,  694,  marg.  p. 


SEC.  II.]  TO  THE   COMPLAINT.  753 

do  not  fall  within  any  of  the  classifications  enumerated  in  the 
several  subdivisions  of  section  167.  In  cases  which  do  tall  within 
the  provisions  of  that  section,  the  rule  as  to  what  may  and  what 
may  not  be  joiried  is  created  by  the  Code  and  is  inflexible. 

The  causes  of  action  must  not  require  different  places  of  trial. 
If  such  causes  of  action  be  joined,  as  for  example,  in  ejectment 
to  recover  two  pieces  of  land  situated  in  different  counties,  a. 
demurrer  will  lie.  The  Code  does  not  in  terms  prohibit  the 
p6S3]  joining  of  different  causes  of  action  which  require  *differ- 
ent  modes  of  trial.  If,  therefore,  it  be  true,  as  has  been 
asserted,  that  the  Code  has  failed  in  establishing  a  uniform  mode 
of  trial  in  civil  actions,  a  mere  defect  of  statement  on  that  account, 
if  the  causes  of  action  be  otherwise  well  joined,  will  not  be  the 
proper  subject  of  demurrer. 

The  causes  of  action  must  he  separately  stated.^ 

A  demurrer  does  not  lie  to  a  complaint  or  answer  on  the  ground 
that  several  causes  of  action  or  defenses  which  may  be  united  iu 
the  same  pleading  are  not  separately  stated."  The  remedy  is  by 
motion.* 

6.  That  the  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  —  This  is  by  far  the  most  usual  and  the 
[^687]  most  important  ground  for  a  '-demurrer  to  the  plaintiff's 
complaint.  [A  demurrer  on  this  ground  has  no  applica- 
bility to  the  capacity  of  the  plaintiff  to  sue.  It  lies  only  where 
the  facts,  stated  as  the  cause  of  action^  fail  to  show  one.*]  A 
failure  to  demur,  however,  does  not  waive  the  objection.'  The 
judgment  obtained  may  be  appealed  from  and  will  be  reversed, 
if  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action."  All  that  a  party  admits  on  a  default  is  the  truth  of 
the  facts  alleged  against  him,  and,  if  the  record  does  not  show 
enough  to  sustain  the  judgment,  it  will  be  reversed.  And  so 
also  even  if  an  answer  is  put  in  and  a  verdict  or  report  of  referees 

»  Ante,  p.  344,  et  sen.,  marg.  p.  238 ;  Henderson  v.  Jackson,  9  Abb    N. 

«  Bass  V.   Comstock,  38  N.  Y.  21,  36  S.  293  ;  Dorman  v.  Kellam,  4  Abb.  203  ; 

How  382  ;  Anderson  v.  Hill,  53  Barb.  Colton  v.  Jones,  7  Rob.  164 ;  Hunter  v. 

238  ;  Henderson  v.  Jackson,  9  Abb.  N.  Powell,  15  How.  221  ;  ante,  341,  >n/irg.p. 

S.  293  ;  Dorman  v.  Kellam,  4  Abb.  202 ;  •*  Phcenix  Bank  v.  Donnell,  40  iN.  Y . 

Colton  V.  Jones,  7  Rob.  164 ;  Hunter  v.  410. 

PowZZ,15How.  221;  ante,  344,  mar/jr.;).  ^  Code.  §  148.                         c,  ^  eoi 

3  Bass  V  Comstock,  38  N.  Y.  21,  36  »  Raynor  v.  Clark,  7  Barb.  S.  C.  581, 

Hovr.  382 ;  Anderson  v.  Hill,  53  Barb,  at  a  general  term,  5th  district. 

95 


754  DEMUEEER.  [CH.  YII. 

is  rendered  for  tlie  plaintiff.'  [The  last  remarks,  however,  should 
be  qualified  so  as  to  include  onlj  cases  where  the  objection  is 
specifically  taken  on  the  trial.] 

1  had  occasion  to  consider  very  fully,  in  chapter  four  of  this 
work,  the  subject  of  the  sufticiency  of  the  complaint,  and  what 
facts  were  necessary  and  essential  to  be  set  forth  to  enable  the 
plaintiff  to  maintain  his  action.  In  order,  therefore,  to  determine 
whether  a  demurrer  may  be  properly  interposed  to  a  complaint 
under  this  sixth  subdivision,  it  will  only  be  necessary  to  examine 
the  pleading  by  the  rules  for  testing  the  sufficiency  of  the  com- 
plaint prescribed  by  the  Code,  and  generally  considered  in  the 
chapter  referred  to.  The  question  will  be.  Does  the  complaint 
allege  facts  which,  if  proved  in  evidence,  or  admitted,  will  entitle 
the  plaintiff  to  judgment?  If  one  or  more  of  such  allegations 
of  fact  are  wanted,  the  plaintiff  may  demur.     So,  too,  he  may 

demur  for  insufficiency,  if  the  complaint  shows  a  former 
[*688]  *good  cause  of  action,  but  discharged  at  the  time  of  suit. 
Facts  sufficient  to  constitute  a  cause  of  action  must  be 
construed  to  mean  o,  present  cause  of  action,  and,  if  such  objecticn 
is  apparent  on  the  face  of  the  complaint,  in  analogy  to  the  equity 
practice,  it  may  be  demurred  to ;  ^  [although  by  section  74  of  the 
Code,  where  the  complaint  shows  a  cause  of  action  barred  by  the 
statute  of  limitations  the  objection  must  be  taken  by  answer  and 

not  by  demurrer.'] 
[*689]  *If  the  complaint  show  a  good  cause  of  action  and  some- 
thing more,  that  is,  if  matters  not  essential  or  material  to  a 
single  cause  of  action,  and  not  in  any  sense  constitutive  as  matter  on 
which  the  right  of  action  depends,  be  alleged,  the  defendant  cannot 
demur  thereto.  It  has  been  repeatedly  held  that  a  demurrer 
must  go  to  an  entire  cora]>laint,  and  will  not  lie  to  a  part  thereof. 
Nor  will  a  demurrer  lie  to  immaterial  matter  in  a  pleading,  or 
for  irrelevancy,  or  uncertainty,  or  other  superflucus 
[*690]  matter.*     *  Nor  to  a  complaint  containing  a  good  cause 

'  Bristol  V.  Rensselaer  and  Saratoga  29  How.  574,  note  ;  Swift  v.  Drake,  MS., 

E.  R.  Co.,  9  Barb.  S.  C.  159  ;  Burnham  Gen.  T.,  6th  Dist.  ;  Waltermere  v.  West- 

V.  De  Bevoise,  8  How.  Pr.  159.  over,  14  N.  Y.  21 ;  Butler  v.  Maso'a,  5 

2  4  Hen.  and  M.  473, 1  id.  18, 2  Paige,  Abb.  40  ;  Winchell  v.  Bowman,  21  Barb, 
280,  4  id.  364.  448,  18  N.  Y.  Sr^S. 

3  Leforts  v.  Hollister,  10  How.  Pr.  ■»  2  Sandf.  702,  1  C.  R.  N.  S.  325,  1 
383;  Sands  v.  St.  John,  23  id.  140,36  Duer,  243,  6  How.  Pr.  4T5,  10  id.  43, 
Barb.  628 ;  affirmed  in  court  of  appeals,  4  id.  413. 


tEC.  II.]  TO   THE   COMPLAINT.  755 

of  action,  mixed  up  witli  irrelevant  or  immaterial  matter.'  But 
this,  as  has  been  observed,  is  not  to  be  extended  to  the  im- 
proper union  of  two  or  more  causes  of  action  in  the  same  com- 
plaint, in  violation  of  section  167.  One  or  more  of  such  causes 
of  action,  it  is  true,  may  be  redundant  or  surplusage,  but  a 
demurrer,  as  we  have  seen,  is  expresslj^  allowed  for  that  cause  by 
the  Code,  unless,  perhaps,  in  the  case  where  a  good  cause  of  action 
is  united  with  one  entirely  untenable,  in  which  case  the  latter 
may  be  struck  out.  When  it  is  said,  too,  that  a  demurrer  must 
be  to  an  entire  complaint,  it  is  meant  only  to  an  entire 
cause  of  action  in  a  complaint.  Where  a  complaint  contains 
more  than  one  cause  of  action,  and  a  general  demurrer  is  inter- 
posed to  the  whole  complaint,  if  either  of  the  causes  of  action  is 
good,  the  demurrer  will  be  overruled.^  If  there  are  several 
causes  of  action  or  counts  set  forth,  separate  demurrers  may  be 
interposed.  And  it  was  said  in  Ogdensburgli  Bank  v.  Paige* 
that  a  complaint  averring  several  distinct  acts  done  and  com- 
mitted by  the  defendants,  and  insisting  that  by  each  of  said  acts 
the  defendant  became  liable  to  pay,  might  be  regarded  as  analogous 
to  a  declaration  containing  several  counts,  and  separate  demur- 
rers might  be  interposed  to  each  cause  of  action.* 
[*691]  *  A  demurrer  to  a  complaint  will  not  lie  on  the  ground 
that  the  complaint  does  not  expressly  aver  or  show  that 
the  debt  for  which  the  action  was  brought  had  become  due  at  the 
time  of  the  commencement  of  the  action.  This  was  held,  under 
the  Code,  in  Maynard  v.  Talcott^  where  it  was  said  that  the 
court  would  not  intend  that  suit  was  brought  before  the  cause  of 
action  accrued,  for  the  purpose  of  supporting  a  demurrer ;  but  if 
it  should  presume  either  way,  the  presumption  would  be  that 
the  debt  sued  on  was  due  before  the  commencement  of  the 
action.  [If,  however,  the  complaint  should  affirmatively  show 
that  the  demand  sued  upon  was  not  due,  a  demurrer  would 
clearly  lie.] 

A  prayer  for  relief  in    the  complaint   cannot  prejudice  the 
defendant  and  will  not  be  struck  out  on  motion,'  nor  can  it  be 

'  WaUon  V.  llusson,  1  Duer,  242.  rer  to  the  whole  complaint  for  not  stat- 

"^  Butler  \.  Wood,  Id  Yi.o\\.'Pv.'Z22.  ing   each   cause  of  action   separately 

=*  3  Code  R.  75.  have  been  well  taken  ? 

''  And  query  within  the  cases  cited,  ^11  i>arl).  S.  C.  ofi!). 

RUU-.  pp.  GSO,  881,  would  not  a  demur-  *  Avcrill  v.  Taylor,  o  How.  Pr.  47G. 


756  DEMURRER.  [CH.  VII. 

demurred  to.  Thus,  in  Beale  v.  Hayes,^  in  the  New  York 
superior  court,  it  was  held  to  be  no  ground  of  demurrer  to  a 
complaint  that  the  plaintiff  claimed  judgment  for  a  larger 
amount  than,  by  his  own  showing,  he  could  be  entitled  to 
recover.  Whether  the  plaintiff  could  be  allowed  to  prove  dam- 
ages exceeding  the  sum  stipulated  in  the  agreement,  for  a  breach 
of  which  he  had  sued,  was  a  question  which  the  court  held  con- 
cerned the  event  of  the  suit,  and  not  the  cause  of  action,  and, 
therefore,   could  be  raised  only  on  the  trial.     In  Maxivell  v. 

Farnam^  it  was  held  that  a  complaint  was  bad  on  demur- 
[*692]  rer  which  *  alleged  the  taking,  detention  and  conversion 

of  personal  property,  and  claimed  not  only  damages  for 
the  conversion,  but  also  a  re-delivery  to  the  plaintiff".  The 
decision  in  this  case  seems  to  have  been  put  upon  the  ground  of 
an  improper  union  of  different  causes  of  action  in  violation  of 
section  167,  and  not  merely  upon  a  defect  in  the  prayer  for  judg- 
ment. [The  case  is  probably  not  good  law,  as  damages  for  tak- 
ing and  detention  are  part  of  a  cause  of  action  in  replevin.] 

An  objection  to  the  mere  form  of  expression  which  the  plain- 
tiff uses,  and  to  the  phraseology,  is  not  matter  of  substance,  and 
is  not  subject  to  demuri-er.  If  in  substance  correct,  but  not  in 
form,  the  party  aggrieved  should  require  the  pleading  to  be  made 
more  definite  and  certain  by  amendment.'  And,  generally,  all 
merely  formal  defects,  whether  in  the  phraseology,  or  in  the  state 
ment  of  facts,  which,  under  the  former  practice,  were  the  appro- 
priate subjects  of  a  special  demurrer,  cannot  now  be  reached  or 
corrected  by  demurrer.  It  applies,  says  Justice  Gridlet,  in 
Richards  v.  Erlick^  only  to  such  defects  as  would  render  the 
count  bad  on  a  general  demurrer  at  law,  or  bad  for  want  of  equity 
in  chancery.  "  The  counts  of  the  complaint,  therefore,"  he 
remarks,  "  to  be  overthrown  by  the  demurrer  must  present  defects 
60  substantial  in  their  nature,  and  so  fatal  in  their  character,  as  to 

authorize  the  court  to  say,  taking  all  the  facts  to  be 
[*693]  *  admitted,  that  they  furnish  no  cause  of  action  whatever." 

This  was  said  in  regard  to  a  complaint  on  an  agreement 
inter  partes^  which  contained  no  express  contract  on  the  part  of 

1  5  Sandf.  640.     See,  also,  Moran  v.        ^  jjowell  v.  Frazer,  1  C.  R.  N.  S.  270. 
Anderson,  1  Abb.  Pr.  288.  *  17  Barb.  260.     See,  also,  Dewitt  v. 

2  7  How  Pr.  236.  Svoift,  3  How.  Pr.  280. 


SEC.  II.]  TO  THE  COMPLAIjSTT.  757 

the  defendant,  but  showed  on  its  face  a  contract  by  i7aplicatio7i, 
and  the  complaint  setting  forth  such  contract,  without  averring  a 
promise  or  engagement  of  the  defendant,  was  held  good  on 
demurrer. 

In  addition  to  the  cases  already  mentioned  in  which  a  demurrer 
may  be  proper  for  an  insufficient  statement  of  facts,  and  what  was 
said  as  to  the  sufficiency  of  the  complaint,  ante,  chap.  4,  one  or 
two  further  remarks  only  will  be  made  in  conclusion  of  this 
subject. 

The  Code  has  apparently  assimilated  the  demurrer  to  the  com- 
plaint under  the  new  practice,  to  the  same  mode  of  proceeding 
under  the  former  practice  in  equity.  Whenever,  therefore,  gen- 
erally, a  demurrer  to  the  suhstcmce  of  the  bill  w^ould  have  been 
proper  under  that  practice,  a  demurrer  for  a  like  defect  may  be 

allowed  by  the  Code. 
[*694]  *  In  most  cases,  a  demurrer  to  a  complaint  for  defect 
of  substance  will  be  proper  where  a  demurrer  to  a  bill  for  the 
same  cause  would  have  been  sustained  before  the  Code.  Thus 
the  objection  may  be  so  taken  when  the  complaint  shows  that  the 
plaintiti'  has  no  interest  in  the  subject-matter,  and  no  title  to 
institute  a  suit  concerning  it.'  As  if  the  complaint  does  not  make 
out  an  equitable  case  in  the  plaintiff  to  the  relief  which  he  seeks ; 
or  if  a  suit  be  brought  by  one  creditor  against  another  to  deprive 
hinr  of  a  priority  which  he  had  lawfully  obtained  without  any 
fraud.'  So  in  case  the  complaint  shows  a  claim  which  is  unlawful, 
or  against  the  policy  of  the  law,  for  in  such  and  like  cases  there 
is  a  defect  of  title  to  maintain  the  suit. 

Want  of  interest  in  the  subject-matter  of  the  suit  is  not  only  a 
good  cause  of  demurrer,  in  the  case  of  a  sole  plaintiff,  but  if  the 
suit  is  joint,  want  of  interest  in  either  of  the  plaintiffs  is  equally 
defective."  As  if  one  of  the  parties  be  a  mere  agent  of  the  other 
and  have  no  further  interest.'  So  also  if  two  parties  sue  and  the 
title  is  alleged  to  be  in  the  one  or  the  other  of  them  in 
[*695]  the  alternative,  for  this  *  shows  that  there  must  necessarily 
be  a  misjoinder  of  one  or  the  other  of  the  parties.* 

'  Cooper's  Eq.  PI.  166, 169  ;  Mitf.  Eq.  Palmer  v.  Davis,  28  id.  242  ,  Carring- 

PI.  154,  231.  ton  v.  Crocker,  4  Abb.  N.  S.  335, 37  N.  Y 

s  Story's  Eq.  PI.,  ?  509.  and  ^§  231  33(i,  and  see  ante,  671,  681,  marg.  p.} 
to  237.     [But  see,  after  trial   upon  the         ^  ]?arb.  Ch.  157. 
merits,  Acklcy  v.  rarhox,  31  N.  Y. 504  ,        '  See  ante,  page  133,  marg.  p. 


758  DEMURREPw  [CII.  VII. 

Want  of  interest  in  the  defendant  in  the  subject  matter  is  also 
a  matter  of  substance,  and  demurrable  if  it  appear  npon  the  face 
of  the  complaint.  Thus  a  married  woman  made  a  party  defend- 
ant in  an  action  on  contract,  as  on  a  bond  or  promissory  note 
executed  jointly  by  herself  and  husband,  may  demur.  The  com- 
plaint should  not  only  show  that  the  defendant  has  an  interest, 
but  also  that  he  is  liable  to  pay  the  plaintiff's  demand.  And  in 
general  if  the  case  stated  is  such,  that,  admitting  the  whole  com- 
plaint to  be  true,  the  C(>::i-t  ought  not  to  give  the  plaintiff  the 
relief  or  assistance  which  he  requires,  in  whole  or  in  part,  against 
all  or  against  any  of  the  defendants,  it  is  not  only  a  sufficient  but 
an  appropriate  ground  of  demurrer;  and  the  objection  thus 
appearing  on  the  face  of  the  complaint  should  be  taken  by  demurrer, 
and  ought  not  to  be  taken  by  plea.*  This  rule,  derived  from  the 
former  mode  of  pleading  in  equity  cases,  is  conceived  to  be  equally 
applicable  to  pleadings  under  the  Code.' 

The  manner  of  pleading  the  demurrer,  and  of  stating  the 
ground  of  the  alleged  objection,  will  be  considered  under  its 
proper  head  in  this  chapter. 


[*G96]  *  SECTION  III. 

WHAT  MATTERS  IN  THE  ANSWER  OR  REPLY  MAY  BE  DEMTCTRRED  TO, 

Under  the  former  equity  practice  a  demurrer  Avas  applicable  to 
a  bill  only,  and  could  not  be  put  into  a  plea  or  answer.  If  the 
answer  was  bad  in  substance,  and  no  proof  was  required  by  the 
plaintiff,  the  cause  could  be  heard  upon  bill  and  answer.  This 
practice  was  retained  by  the  original  Code.  No  demurrer  was 
allowed  to  an  answer  or  reply.  And  if  an  insufficient  answer 
was  put  in,  it  seems  the  defendant  might  move  to  strike  it  out  or 
for  leave  to  proceed  as  for  want  of  an  answer.'  Or,  as  in  Boyce 
V.  Brown*  if  the  case  was  brought  on  at  the  circuit,  judgment 
would  be  rendered  for  plaintiff  (in  analogy  to  cases  in  equity), 
on  complaint  and  answer. 

'  Story's  Eq.  PL,  §  526.  How.  Pr.  177  ;  Bailey  v.  Easterly,  7  id 

*  lloxie   V.  Cashmnn,  7   L.   0.   149  ;    23G. 
Getty  V.  Hudson  River  R.  R.   Co.,  8        » 1  Code  R.  72. 

*  3  How.  Pr.  391,7  Barb.  S.  C.  80. 


SEC.  III.]  TO   THE  ANSWER  AND   llEPLY.  759 

This  pi'iictice  was  found  to  be  inconvenient ;  accordingly  in  the 
amendments  made  to  the  Code  in  1849,  the  defect  was  remedied 
by  allowing  a  demurrer  to  both  answer  and  reply. 

It  was  originally  allowed  to  "  one  or  more  of  several  defenses',  "  * 

and,  as  the  section  was  subsequently  amended,  to  one  or  more 

of  several  "  defenses  and  set-oft'."  ""     By  a  still  further 

[*697]  "^amendment '  it  was  restricted,  according  to  some  of  the 

decisions,  to  the  case  of  an  answer  containing  new  matter 

constituting  a  "  counter-claim."    The  section  now  reads  as  follows : 

"  When  the  answer  contains  new  matter,  constituting  a  counter- 
claim, the  plaintiflF  may,  within  twenty  days,  reply  to  such  new 
mutter,  denying  generally  or  specifically  each  allegation  controverted 
by  him,  or  any  knowledge  or  information  thereof  sufficient  to  form 
a  belief,  and  hb  may  allege  in  ordinary  and  concise  lauguage,  with- 
out repetition,  any  new  matter  not  inconsistent  with  the  complaint 
constituting  a  defense  to  such  new  matter  in  the  answer,  and  the 
plaintiff  may  in  all  cases  demur  to  an  ansiver,  lohere,  upon  its  face,  it 
does  not  constitute  a  counter-claim  or  defense,  and  the  plaintiff  may 
demur  to  one  or  more  of  such  defenses  or  counter-claims,  and  reply 
to  the  residue  of  the  counter-claims." 

Section  155,  allowing  a  demmTor  to  the  reply,  remains  the 
same  as  passed  in  1849. 

[*698]  "  If  a  reply  of  the  plaintiff  to  any  defense  set  up  by  the 
answer  of  the  defendant  be  insufficient,  the  defendant  may 
demur  thereto,   and  shall  state  the  grounds  thereof." 

[*699]  *  For  example  the  counter-claim,  as  we  have  seen,  is  in 
the  nature  of  a  cross-action  between  the  parties,  and 
should  be  stated  substantially  the  same  as  an  original  complaint.* 
Whatever  defect,  therefore,  would  have  been  fatal  on  demurrer 
to  such  a  defense,  if  stated  as  a  new  action,  may  be  regarded  as 
embraced  within  the  section,  and  a  demurrer  will  lie  to  the 
answer  for  such  defect.  Thus,  if  it  show  on  its  face  another 
action  pending  for  the  same  cause,  or  several  causes  of  action 
(counter-claims)  be  improperly  united,  it  is  manifestly  improper 
as  a  defense  under  the  Code ;  or,  if  any  material  allegation  or 
averment,  which  it  is  necessary  to  prove  on  the  trial  in  order  to 
sustain  it,  be  omitted,  it  is  also  insufficient.  These  remarks  are 
equally  applicable  to  the  reply. 

'  Code  of  1849, 5^  153.  "  Amendment  of  1853. 

'  Amendment  of  1851.  *  See  ante,  chap.  5,  §  4. 


760  DEMUERER.  [CH.  VII. 

So,  too,  the  Code   requires  that   if  there  are  several 
[*700]  defenses,  they  shall  each  be  separately  stated,  and  *  refer 

to  the  causes  of  action  which  they  are  intended  to  answer 
in  any  manner  in  which  they  may  be  intelligibly  distinguished. 
And  the  general  principles  which  have  been  already  indicated  in 
regard  to  a  demurrer  to  a  complaint  for  this  cause,'  may  be  applied 
to  the  demurrer  to  an  answer.  The  same  may  be  also  said  of  the 
reply. 

Many  of  the  rules  of  pleading  relative  to  a  demurrer  to  a  com- 
plaint, as  laid  down  in  the  last  section,  are  equally  applicable  to 
an  answer  or  reply.  Thus,  we  have  seen  that  a  demurrer  must 
go  to  an  entire  complaint,  and  will  not  lie  to  a  part  thereof.  The 
same  has  been  expressly  held  of  the  answer,  as  where  a  defendant 
selected  several  sentences  forming  a  part  of  the  statement  of  one 
entire  defense,  and  demurred  to  them,  replying  to  the  residue. 
The  question  was,  whether  the  defendant  could  demur  except  to 
an  entire  defense.  Gridlet,  J.,  overruled  the  demurrer,  adding 
that  he  would  have  struck  it  out  had  a  motion  been  made  to  that 
effect.^  In  a  more  recent  case,'  however,  it  has  been  doubted 
whether  the  demurrer  is  such  a  pleading  as  can  be  corrected  on 
motion  to  strike  out,  unless  in  the  case  of  a  frivolous  demm-rer, 

provided  for  by  section  247. 
[*701]       *  Demurrer  to  denial. —  [A  demurrer  does  not  lie  to 

an  answer  setting  up  no  new  matter,  but  merely  denying 
the  allegations  in  the  complaint.*     If  the  denial  be  sham,  frivo- 
lous or  immaterial,  the  remedy  is  by  motion.^] 
[*704]       *  In  respect  to  the  demm-rer  to  a  denial  in  the  reply, 

the  same  rules  are  applicable. 
Demurrer  to  new  matter.  —  We  have  seen  in  a  previous  chap- 
ter' in  what  cases  a  defendant  may,  and  in  what  cases  he  onust 

set  up  a  defense  by  way  of  new  matter  in  his  answer. 
[*705]  The  mode  and  manner  *  of  stating  such  facts  have  also 

been  particularly  noticed.     The  new  matter  set  up  in  the 

'  Ante,  p.  344,  et  seq.  683,  684,  marg.  O'Connor,  10   Abb.  362  ;   Maretzek  v. 

pp.  Cauldwell,  19  id.  35. 

■^  Cobb  V.  Wrcvzee,  4  How.  Pr.  413.  ^  Lund  v.  Seaman's  Savings  Bank, 

3  Smith  V.  Brown  et  al,  6  How.  Pr.  37  Barb.  129,  23  How.  258;  Maretzek 

383.  V.  Cauldwell,  19  Abb.  35. 

*  Lund  V.  Seaman's  Savings  Bank,  *  Ante,  chap.  5,  §  3. 
37  Barb.  129,    23  How.  258;   Rice  v. 


SEC.  III.]  TO   THE   ANSWER  AKD   REPLY.  761 

answer  is  required  to  be,  in  the  language  of  the  Code,  "new 
matter  constituting  a  defense.''^  This  means  that  the  matter  set 
up  must  be  an  entire  defense  to  the  whole  action,  or  to  such  part 
of  it  as  it  professes  to  answer.  Thus,  matter  in  mere  mitigation 
of  damages,  without  anj  direct  issue  being  taken  in  the  case,  is 
not  a  defense  within  the  meaning  of  the  Code.'  When  such 
matter  is  pleaded  as  a  defense,  the  plaintiff,  it  seems,  has  his  elec- 
tion to  move  for  judgment  as  on  a  frivolous  answer,  or  to  inter- 
pose a  demurrer.  This  was  considered  the  rule  in  Matthews  v. 
JBeaeli^  where  a  demurrer,  interposed  to  mitigating  circumstances 
set  up  in  the  answer  to  a  libel  suit,  was  sustained.  Such  an 
answer,  says  the  court,  may  be  struck  out  as  frivolous ;  but  in  all 
cases  when  such  a  motion  can  properly  be  made,  the  plaintiff  has 
an  election  to  make  it  or  demur."  In  Lane  v.  Gilbert*  where 
mitigating  circumstances  were  pleaded  without  any  direct  issue 
having  been  taken  upon  the  fact,  a  motion  for  judgment,  on 
account  of  the  frivolousness  of  the  answer,  was  regarded  as  the 
proper  remedy.  Since  the  amendment  allowing  a  demurrer  to 
the  answer,  the  plaintiff  may  now,  undoubtedly,  in  such  cases, 

have  his  election  to  demur,  or  move  for  judgment  in  a 
[*706]  summary  manner.     *  But  the  rule  does  not  extend  so  far 

as  to  allow  a  demurrer  to  a  partial  defense  set  up  by  way 
of  counter-claim,  such  as  recoupment  of  damages,  or  set-off',  even 
though  such  counter-claims  do  not  profess  to  be  entire  defenses. 
!N"or  does  it  extend  to  a  demurrer  to  matter  which  may  be  alleged 
in  the  answer,  in  connection  with  a  denial,  or  other  issue  of  tact 
on  the  merits,  even  though  it  be  matter  which  might  be  given  in 
evidence  without  being  specially  pleaded.  The  question  as  to 
what  matters  not  constituting  a  full  defense  may  thus  be  pleaded, 
has  been  already  treated  of  in  another  part  of  this  work.* 

But  though  a  frivolous  answer,  or  even  an  irrelevant  answer, 
as  a  whole,  may  be  demurred  to,  yet  mere  irrelevancy  or  redun- 
dancy is  not  a  ground  of  demurrer;  that  is  to  say,  where  the 
answer  contains  irrelevant  matter,  if  it  contain  also  a  valid  defense 
which  may  be  separated  from  the  irrelevant  matter,  as  in  Watsoii 
v.  Husson,"  the  demurrer  will  be  overruled.  Nor  must  tlie  demurrer 

'  Newman  v.  Otto,  4  Sandf.  668.  *  Ante,  pp.  484.  489,  499, 504. 

2  5  Sandf.  356.  «  1  Duer,  242.     See.  also,  6  How.  Pr 

«  9  How.  Pr.  150,  475 ;  3  Saudf.  74;j ;  1  C.  R.  X.  S.  325. 

9G 


762  DEMURRER,  [cn.  VII. 

be  too  broad  ;  that  is  to  say,  it  must  not  be  to  tlie  >\  hole  answer,  with- 
out specifying  the  parts  to  wliich  it  is  intended  to  apply.  How- 
ever defective  some  of  the  defenses  may  be,  if  the  answer  contain 
one  valid  denial  or  defense,  the  demurrer,  if  in  form  taken  to  the 

whole  answer,  will  be  overruled  ;  and  the  rule  is  the  same 
[*707]  *  in   regard   to  a   demurrer   to  the  complaint.*     But   a 

demurrer  which  commences  by  stating  that  the  plain tiif 
demurs  to  the  answer^  and  then  specifies  the  parts  of  the  answer 
to  which  exception  is  taken,  and  to  which  the  demurrer  is  intended 
to  apply,  will  not  be  deemed  too  broad,  or  as  extending  to  other 
parts  of  the  answer  than  those  specilied.' 

It  has  been  held  that  a  plaintiff  cannot  demur  to  one  defense 
in  an  answer  which  is  inconsistent  with  his  reply  denying  other 
defenses.  The  court,  it  is  said,  in  determining  upon  a  demurrer, 
will  take  into  consideration  all  those  parts  of  the  answer  which 
precede  that  covered  by  the  demun-er,  so  that,  as  in  Beach  v. 
Burdell^  the  sufiiciency  of  a  defense  may  depend  upon  the  fact 
whether  other  allegations  than  those  demm*red  to  have  been  put 
in  issue  or  not. 

As  to  the  sufficiency  of  new  matter  in  the  answer,  generally, 
and  the  mode  and  manner  of  the  statement  thereof,  and  in  what 
cases  a  demurrer  will  lie,  the  reader  is  referred  to  the  preceding 
chapter  which  treats  on  the  subject  of  the  answer.^ 

The  test  of  the  sufficiency  of  an  answer  of  new  matter,  when 
pleaded  as  a  full  defense,  is  very  accurately  laid  down  by  the 

court  in  Gihon  v.  Levy^  in  the  general  proposition,  that 
[*TOSJ  "  the  facts  *  set  forth  which  are  relied  on  must  be  set  forth 

at  least  with  so  much  certainty  that,  admitting  them  to  be 
true,  they  constitute  a  bar  to  the  plaintiff's  recovery."  That  is 
to  say,  if  all  the  facts  set  forth  in  the  answer  are  true,  exactly  as 
they  are  alleged,  and  yet  the  plaintiff  is  entitled  to  recover,  either 
the  whole  of  his  claim,  or  the  part  of  it  assumed  to  be  answered, 
the  defense  is  insufficient  and  must  fall  on  demurrer.  The  inquiry 
is,  says  the  court,  in  Ketcham  v.  Zerega^  "  does  the  matter  alleged, 
in  the  manner  in  which  it  is  alleged,  constitute  a  good  defense  to 

'  ButUr  V.  Wood,  10  How.  Pr.  223.  ^  ^urr  v.  Wright,  9  How.  Pr.  542. 

«  Mattheios  v.  Beach,  5  Saudf.  256.  *  2  Duer,  327. 

Approved  by  court  of  appeals,  but  the  ^  Ante,  chap.  5,  §  3. 

judgment  in  this  case  was  reversed  on  *  2  Duer,  176. 

another  point,-!  Seld.  173.  '  1  Smith's  N.  Y.  Com.  PI.  553. 


SEC.  III.]  TO   THE   ANSWER  ANI}   REPLY.  76^ 

the  action  ?  There  may  be  many  imperfections,  much  surplusage, 
great  vagueness  and  want  of  due  particularity,  or  other  objections 
to  the  answer,  but  on  deinurrer  the  sufficiency  of  the  matter  stated 
to  constitute  a  defense  is  alone  to  be  considered." 

It  is  scarcely  necessary  in  this  place  again  to  remark  the  com- 
plete analogy  between  a  defense  by  way  of  reply  to  new  matter 
in  the  answer,  and  a  defense  by  way  of  answer  to  the  plaintiff's 
.  complaint.  And  the  analogy  holds  good  in  all  respects  between 
a  demurrer  to  the  answer  and  a  demurrer  to  the  reply.  As  to 
what  insufficiency  in  the  reply  will  justify  a  demurrer  thereto, 
the  reader  is  referred  to  the  section  which  treats  specifically  on 
that  subject.*  It  is  proper  to  reply  a  set-off  to  a  set-otf 
[*709]  pleaded  in  the  *  answer."  [In  order,  liowever,  to  avoid 
this  objection,  it  is  advisable,  when  possible,  for  the  plain- 
tiff to  amend  his  complaint  by  setting  up  the  matter  to  be  replied 
as  a  substantive  cause  of  action.  In  cases  where  plaintiff's  counter- 
claim grows  out  of  that  set  up  by  defendant,  and  does  not  constitute 
such  a  cause  of  action,  this,  of  coarse,  cannot  be  done.] 

If  a  plaintiff  I'eply  to  an  answer  of  new  matter  which  does  not 
set  up  a  counter-claim,  such  a  reply  being  a  pleading  not  author- 
ized by  the  Code,  will  be  set  aside,  or  struck  out  on  motion,  as 
irregular  within  the  rule  indicated  in  Robinson  v.  Judd.^  It 
seems  that  a  demurrer  in  such  a  case  is  not  a  proper  way  to  raise 
the  objection,  the  question  being  upon  the  irregularity,  not  the 
insufficiency  of  the  pleading. 

Demurrer  to  counter-claim.  —  The  counter-claim  set  up  by  the 
defendant  in  his  answer  to  the  plaintiff's  complaint,  it  has  been 
seen,  is  similar  in  its  nature  to  anew  action,  and  the  rules  govern- 
ing tlie  manner  of  such  statement  are  the  same.''  And  generally 
a  demurrer  will  lie  to  such  counter-claim  for  insufficiency  in  those 
cases  where  a  demurrer  would  lie  to  the  same  matter  if  set  up  in 
an  original  complaint.^ 

The  Code,  as  we  have  seen,  requires  the  counter-claim  to  be 

one  existing  in  favor  of  a  defendant  and  against  a  plaintiff 

pTlO]  between  whom  a  several  judgment  *  might  be  had  in  the 

'  Ante,  cbap.  6,  §  1.  to  ^  153,  do  not,  we  tliink,  apply  to  the 

*  [Miller  v.  Lose'e,  9  How.  356 ;  Eeilly  Code  as  it  now  stands.] 

V.   Itnrker,   16   Ind.   303 ;    Turner    v.        ^  9  How.  Pr.  378. 

Sirnpaon,  12  id.  413.     The  cases  to  the        ■*  Ante,  chap.  5,  >?  4. 

coulraiy,  cited  by  Mr.  Wait  in  his  notes        *  See  ante,  §  2  of  this  chapter. 


764  DEMURREE.  [CH.  YII. 

action.'  No  other  is  authorized  to  be  set  up,  and  if  a  viola- 
tion of  the  rule  appears  on  the  face  of  the  pleading  it  will  be 
good  ground  for  demurrer.  Thus,  where  A,  in  a  joint  action 
brought  by  B  &  C,  pleads  a  counter-claim  existing  against  B 
alone,  it  may  be  demurred  to  unless  it  also  appear  that  a  separate 
judgment  may  be  proper  in  respect  to  the  subject-matter  between 
A&B. 

So  if  a  counter-claim  is  not  connected  with  the  subject  of  the 
action  within  the  rule  as  we  suppose  it  to  be  established,'*  or  does 
not  arise  out  of  the  contract  or  transaction  which  is  the  founda- 
tion of  the  plaintiff's  action,  such  defect,  if  apparent  and  capable 
of  being  pointed  out  in  the  pleading,  is  a  valid  ground  of  demurrer. 
Thus  in  an  action  on  a  note  given  on  the  sale  of  real  estate,  if  the 
defendant  should  set  up  by  way  of  recoupment,  as  a  counter-claim, 
that  the  plaintiff,  subsequent  to  the  sale,  committed  a  trespass  on 
the  lands,  it  would  be  manifestly  bad  pleading  and  liable  to 
demurrer.  But  matter  which  could  heretofore  have  been  properly 
introduced  in  evidence  to  mitigate  or  defeat  damages  by  way  of 
recoupment,  though  formerly  it  could  only  be  set  up  by  way  of  a 
notice,  and  could  not  be  pleaded,  may  and  must  now  be  stated  in 

the  form  of  an  answer,  and  is  not  demurrable,  as  a  partial 
[*711]  defense.'     So  too  in  respect  to  a  set-off,  the  Code  *  requires 

it  to  be  alleged  as  a  counter-claim  in  the  answer,  and  it 
may  be  so  alleged  either  as  a  full  or  partial  defense,  and  though 
a  set-off  is  considerably  more  extensive  under  the  Code  than 
formerly  under  the  statute,*  it  now  embracing  matters  of  un- 
liquidated as  well  as  liquidated  damages,  and  being  allowed  in 
all  cases  of  actions  on  contracts,  yet  it  must  be  confined  strictly 
within  these  rules  of  the  Code.  If  A  undertake  to  set  off  dam- 
ages, arising  on  contract  in  a  suit  brought  by  B  for  damages,  for 
a  tort  or  wrong,  the  remedy  is  by  demurrer.  And  so  if  the  action 
is  on  contract,  and  the  set-off  appear  on  its  face  to  have  accrned  to 
the  defendant  after  the  commencement  of  the  action,  the  plaintiff 
may  demur. 

'  Code,  §  153.  »  Willis  v.  Taggard,  6  How.  Pr.  43a 

*  Ante,  pages  565,  566,  marg.  p.  *  Ante,  marg.  pp.  554,  559. 


SEC.  IV.  J  GROUNDS   OF,    HOW   STATED.  765 

SECTION  IV. 

HOW  THE  GROUNDS  OP  DEMURKER  ARE  TO  BE  STATED. 

Prior  to  the  decision  of  the  court  of  appeals,  in  Ilaire  v.  BaJceVy 
it  was  a  disputed  question  whetlier,  under  the  Code,  a  general 
demurrer  was  allowable,  or,  on  the  other  hand,  whether 
[*712]  the  party  *  demurring  was  not  bound  to  point  out  specifi- 
cally the  defects,  or  omissions,  which  he  claimed  rendered 
the  pleading  bad  for  the  cause  specified.     The  demurrer  to  the 
complaint,  answer,  and  reply,  is  required  by  the  Code  to  specify 
or  state  the  grounds  thereof."     And  while  many  of  the  cases  held 
a  demurrer  sufiicient  which  stated  generally,  in  the  language  of 
the  statute,  that  "  the  complaint,  etc.,  does  not  allege  facts  sufii- 
cient to  constitute  a  cause  of  action,"  '  others  considered  it  essen- 
tial to  the  validity  of  the  demurrer  to  point  out  the  precise  ground 
of  the  defect."     The  confiicting  decisions  on  this  subject  may  be 
considered  in  a  measure  settled  by  the  court  of  appeals,  in  the 
case  of  Ilaire  v.  Baker,  above  cited,  in  which  a  demurrer  in  the 
words  of  the  statute,  averring  that  "  the  complaint  does 
[*713]  not  state  facts  sufiicient  to  constitute  a  cause  of  *  action," 
was  considered  a  compliance  with  the  law,  and  sufficiently 
definite  to  raise  the  question  of  the  sufficiency  of  the  facts  stated 
in  the  complaint.^ 

[In  demurring  to  a  complaint  on  the  grounds  that  the  court 
has  no  jurisdiction  of  the  person  of  the  defendant,  or  of  the  sub- 
ject of  the  action,  or  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action,  it  is  sufiicient  to  state  such 
grounds  in  the  language  of  the  Code."  With  respect  to  the  other 
subdivisions  of  section  144,  a  demurrer  under  either  should  speciti- 

'  1  Selden,  357.  *  Olenny  v.  Hitchim,  4  How.  Pr.  08  ; 

*  Section  145  provides  tliat  the  de-  Purdyv.  Carpenter  &  Ferris,  iS'id.fMl; 

murrer     shall    distinctly     specify    the  Wliite  Y.Hudson  River  Ins.  Co. ,1  id. 

grounds  of  objection  to  the  complaint.  341 ;  and  see  also  Grani  v.  Lasher,  2 

Unless  it  do  so  it  may  be  disregarded.  Code   K.  2  ;  TTunter  v.  Frisbee,  id.  59  : 

^  Darlcee  \.  Saratoga  &  Washington  Hinds  y.Tweddle  &  Darlington,!  ^ovr. 

Raih'oad   Co.,  4  How.  Pr.  236  ;  Swift  v.  Pr.  278. 

J)avitt,d  id.  281  ;  Hyde  v.  Conrad,'5  id.  *  Arthur  v.  Brooks,  14  Barb.  533. 
112  ;  Anibalv.  Hunter,  0  id.  255  ;  Hoag-  *  Haire  v.  Baker,  5  N.  Y.  357  ;  John- 
land  V.  Van  Winkle,  8  id.  343  ;  Getty  v.  son  v.  Wetmore,  12  Barb.  433  ;  see  Getty 
Hudson  River  Railroad   Co.,  id.  177;  x.  Hudson  River  R.  R.,S'S.o\r.  111. 
Johnson  v.    Wetmore,   12   Barb.   433 ; 
Paine  v.  Smith,  2  Duer,  298. 


766  DEMURRER.  [CH.  VII. 

callj  point  out  tlie  grounds  of  objection/  The  objection  must 
appear  on  the  face  of  the  complaint,''  and  judgment  cannot  be 
given  for  the  party  demurring  on  a  ground  different  from  that 
stated  in  the  demurrer/] 

In  Getty  v.  Tlte  Hudson  Rwer  Railroad  Company*  the  court 
said :  "  In  some  instances,  two  distinct  grounds  of  demurrer  are 
embraced  in  one  of  the  subdivisions  of  the  section  mentioned. 
Thus,  the  defendant  is  authorized  to  demur  when  it  appears  that 
the  court  has  no  jurisdiction  of  the  person  of  the  defendant, 
or  the  subject  of  tlie  action.  In  a  demurrer  for  want  of  juris- 
diction it  would,  undoubtedly,  be  necessary  for  the  defendant 
to  state  whether  the  alleged  want  of  jurisdiction  related  to  the 
'person  of  the  defendant,'  or  'the  subject  of  the  action.'  So, 
when  the  defendant  demurs  on  the  ground  that  it  appears  on  the 
face  of  the  complaint  that  there  is  a  defect  of  parties,  plaintiff  or 
defendant,  he  should  state  whether  it  is  a  defect  of  parties  plain- 
tiff or  parties  defendant,  upon  which  he  relies.  But  in  respect 
to  the  other  grounds  of  demurrer,  I  do  not  understand 
[*714]  that  any  thing  more  is  required  than  to  *  state  the  objection 
in  the  very  words  of  the  statute." 

In  regard  to  a  demurrer  for  defect  of  parties,  the  same  distinc- 
tion was  pointed  out  in  a  very  early  case,^  under  the  Code,  by 
Justice  Gkidley,  and  indeed,  a  rather  more  strict,  and,  I  think, 
perfectly  correct  principle  indicated,  that  is  to  say,  that  though  a 
ground  of  demurrer  is  well  assigned  which  alleges  generally  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action,  yet  there  is  a  class  of  cases  in  which  such  a  demurrer 
miglit  not  be  sufficient ;  as  for  example,  to  say  generally  that  the 
complaint  showed  there  was  a  defect  of  parties,  without  specify- 
ing who  should  be  joined,  or  who  were  misjoined.  This  was 
precisely  the  equity  rule.  Where  a  demurrer  was  put  in  for  want 
of  the  necessary  parties,  it  must  show  who  M-ere  the  proper  par- 
ties from  the  facts  stated  in  the  bill,  not  indeed  in  all  cases  by 
name,  for  that  might  be  impossible,  but  in  such  a  manner  as  to 
point  out  to  the  plaintiff  the  objection  to  his  bill,  and  to  enable 

'  SJdnner  v.  Stuart,  13  Abb.  443, 4/57 ;        »  Wilson  v.  Mayor,  6  Abb.  G  ;  Fulton 

Uichtmyp.r  v.  RirMinyer,  J50  Barb.  55  ;  Fire  Ins.  Go.  v.  Baldmn,  37  N.  Y.  648. 
Palmrr  v.  Davis,  2S  N.  Y.  2 1(5,  347.  *  8  How.  Pr.  ]  77. 

«  WiLirjii  V.  Mni/or,  6  Abb.  6.  ^  BeWitt  v.  Swift.  3  How.  Pr.  281. 


Sj;C.  IV.]  GEOUNDS   OF,    HOW   STATED.  767 

him  to  amend  by  making  proper  parties.*      And  this,  it  must  be 

conceded,  is  a  safe  and  convenient  rule  of  practice  under  the  Code. 

Though  demurrer,  which   specifies    generally  for  cause   that 

th.e  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 

of  action,  is  undoubtedly  sufficient  within  the  decision  in 
[*715]  Haire  v.  Baker,  "^  supra,  there  is  nothing  to  prevent  the 

defendant  (or  if  the  demurrer  be  to  the  answer,  the  plain- 
tiff), from  pointing  out  specifically  the  ground  of  objection.  In  the 
recent  case  of  Doughty  v.  Develin^  the  court  says,  it  will  not 
feel  bound  to  sustain  a  demurrer  upon  a  ground  not  raised  in  the 
argument.  So,  on  appeal,  an  objection  raised  for  the  first  time 
in  the  appellate  court  may  be  disregarded.  In  order,  therefore, 
to  avoid  any  question  on  this  point,  a  brief  specification  in  the 
demurrer  of  the  defects  in  the  pleading  objected  to,  and  coupled 
with  the  general  demurrer  in  the  words  of  the  statute,  will  be 
found  convenient  in  practice. 

There  are  cases,  no  doubt,  in  which,  from  their  nature,  a  general 
allegation  in  the  language  of  the  Code  is  not  only  sufficient,  but 
all  that  can  be  proper.  Thus,  if  a  demurrer  is  taken  for  the  cause 
that  "  there  is  another  action  pending  between  the  same  parties 
for  the  same  cause,"  and  the  complaint  plainly  show  this  on  its 
face,  there  can  be  little  doubt,  as  was  said  in  Swift  v.  Dewitt^ 
supra,  that  a  demurrer  in  these  words  alone  would  be  proper. 
In  such  case  it  might  be  difficult  to  make  a  more  distinct  or  par- 
ticular specification  of  the  grounds  of  demurrer.  But  in  nearly 
every  other  class  of  cases  such  particular  specification  can,  and, 
whenever   necessary   to  apprise   the   other   party  of    the   exact 

point  of  objection,  should  be  made,  or  if  not  made,  the 
["TIG]  *  court,  on  the  trial  or  hearing,  might,  in  a  proper  case, 

refuse  to  permit  the  point  to  be  raised.  Thus,  if  the  plaintiff 
demur  on  the  ground  "  that  several  causes  of  action  have  been 
improperly  united,"  the  question  might  arise  as  to  what  "  im- 
proper "  union  the  party  objecting  meant ;  whether  a  union  of 
two  causes  of  action,  separate  and  distinct  in  themselves,  and  not 
referable  to  one  only  of  the  classes  specified,  or  a  union  by 
blending  and  mingling  together,  contrary  to   the  Code,  two  or 

'  Story's  Eq.  PI.,  §  543,  and   cases        '  2  Duer,  627. 
there  cited. 


768  DEMURRER.  [CH.  VII. 

more  causes  of  action  wliicli  may  be  properly  united  if  separ- 
ately stated.  In  such  case  it  would  be  manifestly  proper  to  state 
distinctly  the  precise  point  of  the  defect  which  it  is  intended  to 
raise  on  the  argument,  and  if  not  done,  I  think  the  court,  in 
analogy  to  the  practice  on  general  and  special  demurrer  under  the 
old  system,  should  refuse  to  permit  any  other  question  to  be 
raised  on  the  argument  than  the  general  question  whether  the 
causes  of  action  are  compatible.'  Indeed,  it  has  been  expressly 
held  in  case  of  a  demurrer  to  an  answer  under  the  Code,'  that  if 
the  demurrer  does  not  specify  the  grounds  thereof,  the  objection 
cannot  afterward  be  taken  on  the  argument.  The  same  prin- 
ciple is  doubtless  well  applied  to  a  demurrer  to  a  complaint  or 

reply. 
[*T17]  *  The  party  demurring  is  .required  to  "state  the 
grounds  "  of  his  objection.  In  the  case  of  a  demurrer  to 
the  complaint,  he  must  "  distinctly  specify "  such  grounds  of 
objection,  and  if  he  do  not,  the  demurrer  may  be  disregarded ; 
that  is,  treated  as  a  nullity  (the  plaintiff  having  returned  it,  or 
notified  the  defendant  that  it  would  be  disregarded),^  and  the 
plaintiff  may  thereupon  enter  judgment,  as  in  case  of  a  default. 

The  Code  is  silent  as  to  how  a  demurrer  to  an  answer  or  reply 
is  to  be  treated,  when  such  demurrer  does  not  state  the  ground  of 
the  insufficiency.  I  understand,  however,  the  practice  to  be  that 
it  may  be  treated  in  the  same  way  as  a  demurrer  to  a  complaint 
which  is  defective  in  this  particular.  A  demurrer,  it  has  been 
said  in  a  late  case,  is  a  pleading  which  is  not  properly  within  the 
160th  section  of  the  Code,  so  as  to  be  the  subject  of  a  motion  to 
strike  out  or  make  more  definite ;  *  unless,  indeed,  in  cage  where, 
by  the  Code,  the  demurrer  is  clearly  frivolous.*  If  this  summary 
manner,  therefore,  of  treating  the  demurrer  as  a  nullity  were  not 
allowed,  the  party  aggrieved  would  have  no  remedy  except  to 
bring  it  on  for  argument  in  the  usual  way. 

1  And  this  has  been  so  lield  by  Jus-  '^  Kneiss  v.  Seligman,  8  Barb.  S.  C. 

tice  Dean,  in  the  late  case  of  Moore  v.  439,  5  How.  Pr.  425. 

Smith  and  Marshall,  \(i  How.  801,  and  ^  See    practice    on    disregarding    a 

a  demurrer  to  a  complaint  overruled  pleading,  ante,  pp.  376, . '589,  mw?-^  p. 

for  not  specifying  the  precise  ground  *  Smith  v.  Brown,  6  How.   Pr.  685; 

thereof,   namely,  that   the   causes  of  See   also   Otis  v.   Ross  and  others,  8 

action  were  not  separately  stated  in  id.  193. 

the  complaint.                      '  ^  Code,  §  247. 


SEC.  v.]      OBJECTION   TO   PLEADING,    HOW   TAKEN.  769 

[*718]  *  SECTION  V. 

OBJECTION  TO  PLEADING  ^VTHEN  TO  BE  TAKEN  BY  ANSWER,  WHEN  ON  MOTION 
OR  BY  DEMURRER,  AND   WHEN   DEEMED   WAIVED. 

An  objection  to  a  defective  pleading  may  be  taken  in  various 
ways.  Sometimes  it  can  be  done  only  by  demurrer;  sometimes 
a  motion  to  strike  out  the  defective  pleading  is  the  proper  course ; 
sometimes  a  party  has  his  election  to  adopt  one  or  the  other 
modes ;  sometimes  the  objection  can  be  raised  by  answer  alone ; 
and  sometimes  it  may  be  raised  after  issue  of  fact,  on  the  trial,  or 
even  at  a  later  stage  of  the  cause. 

These  various  modes  of  objection  to  a  defective  pleading  have 
already  been  considered  to  some  extent  in  the  course  of  this 
work,  their  distinction  pointed  out,  and  perhaps  most  of  the 
decisions  upon  the  subject  referred  to.  It  may,  however,  be 
useful,  briefly,  to  present  in  this  place  a  summary  view  of  the 
question,  for  convenience  of  reference ;  and  first,  in  what  eases 
should  the  objection  to  a  pleading  be  taken. 

By  answer. — A  party  may  either  demur  to  or  answer  the  pre- 
vious pleading  of  his  adversary.  He  may  do  the  one  or  the 
other,  but  cannot  do  both  to  the  same  cause  of  action.  If  he 
answers,  his  demurrer  is  waived,  though  it  is  presumed  he 
might  be  permitted  by  the  court,  on  terms,  and  on  good 
[*719]  *  cause  shown,  to  withdraw  an  answer,  and  demur.  When 
a  demurrer  has  been  overruled,  the  party  demurring  is 
not  entitled  to  put  in  an  answer  as  a  matter  of  riglit,  but  the 
court  in  its  discretion  may  allow  him  to  do  so  on  such  terms  as 
may  be  just,  if  it  apjpear  that  the  dermirrer  was  interposed  in 
good  faiths 

[If  the  demurrer  be  allowed  for  the  cause  mentioned  in  the  fifth 
subdivision  of  section  144,  the  court  may,  in  its  discretion  and 
upon  such  terms  as  may  be  just,  order  the  action  to  be  divided 
into  as  many  actions  as  may  be  necessary  to  the  proper  determin- 
ation of  the  causes  of  action  therein  mentioned.] 

Under  the  old  practice,  where  a  demurrer  was  not  frivolous,  the 
court  would  allow  it  to  be  withdrawn  on  payment  of  costs,  after 

1  Code,  §  172. 
97 


770  DEMURRER.  [CH.  VIl/ 

they  had  ruled  against  it,  on  application  made  at  the  same  term 
before  judgment  was  entered.'  Otherwise,  if  the  demurrer  was 
fi-ivolons,  even  though  the  application  was  accompanied  by  an 
affidavit  of  merits."'  And  by  statute,  where  the  demurrer  was 
special  for  form,  and  overruled,  judgment  was  absolute,  and  no 
plea  or  other  defense  could  be  allowed.^  This,  however,  did  not 
apply  where  the  objection  could  be  raised  by  general  demurrer.* 
Under  the  Code  it  must  appear,  in  all  cases,  that  the  demurrer 
was  interposed  in  good  faith,  in  order  to  authorize  the  court  to 
allow  an  answer  at  all.  Thus,  the  judgment,  if  a  frivolous  demur- 
rer is  of  such  a  nature  as  to  be  clearly  apparent  that  it  is  put  in  as 
a  sham  defense,  will  be  final,  and  no  affidavit  of  merits  can  help 
it ; '  [although  a  defendant  may,  in  such  case,  be  allowed  to  answer, 

on  giving  security  for  the  recovery.*]  In  every  other  case 
[*T20]  it  is  within  the  *  discretion  of  the  court,  on  overruling  a 

demurrer,  to  allow  an  answer  or  not;  but  the  usual  course 
is,  on  overruling  the  demurrer,  to  give  leave  to  the  defendant 
to  answer  on  payment  of  costs,  without  any  affida\'it  of  merits ; 
[unless  it  appear  that  no  amendment  can  aid  the  party.']  If  this 
provision,  however,  be  not  included  in  the  order  overruling  the 
demurrer,  the  defendant  may  obtain  it  on  motion,  supported  by 
an  affidavit  of  merits,  and  that  liis  demurrer  was  interposed  in 
good  faith.  [If  the  party  desire  to  amend  he  should  avail  him- 
self of  the  liberty  to  do  so,  and  not  appeal  from  the  judgment.*] 

It  is  to  be  observed  that  the  answer  is  proper  only  to  raise  an 
objection  to  a  pleading  where  that  objection  does  not  appear  on 
the  face  thereof,  as,  for  want  of  parties,  another  action  pending, 
etc.,  etc.  An  answer  which  undertakes  to  raise  an  objection  to 
the  complaint  of  any  one  of  the  causes  of  demurrer  enumerated 
in  section  144,  where  the  objection  appears  on  the  face  of  the 
pleading,  may  be  regarded  as  insufficient,  within  the  meaning  of 

1  1  Johns.  Ch.  411,2  id.  284,3  id.  300,  was  put  in  in  good  faith.  Appleby  v. 
3  Johns.  140,  2  Caines,  3G9.  Elkins,  4  Sandf.  673. 

2  1   Johns.   135,   but  see  10    Wend.  «  IScott  v.  Buncombe,  49  Barb.  73. 
623  '  Snova  v.  Fourth  Nat.  Bank,  7  Rob. 

»  2  R.  S.  352,  §  6,  2  Edm.  St.  364.  480. 

*  7  Wend.  461,  *  WJiiting  v.  Mayor,  37  N.  Y.  600 ; 

*  Though  it  seems  there  are  cases  in  Shibley  v.  Angle,  37  id.  633  ;  Hitchings 
-which,  on  an  affidavit  of  merits,  a  de-  v.  Van  Brunt,  5  Abb.  N.  S.  272,  38 
fendant  might  be  allowed  to  answer  N.  Y.  335  ;  but  see  Fulton  Ins.  Co.  v. 
on  the  overruling  of  a  frivolous  de-  Baldwin, 'il  id.  652;  "Thatcher  v.  Candee. 
murrer,  the  court  being  satisfied  that  it  3  Key«!S,  100. 


SEC.   v.]      OBJECTION   TO   PLEADING,    HOW   TAKEN.  771 

the  Code  and  the  cases  ah*eadj  cited.    If  the  party  intend  to  raise 
sucli  objection  he  should  do  so  by  demurrer.' 

Ohjectlon  when  taken  hy  demurrer  or  on  motion.  —  We  have 
remarked  that  sometimes  a  demurrer  is  the  only  proper  way  to 
take  the  objection,  sometimes  it  can  be  reached  only  on  motion, 
and  sometimes  the  party  has  his  election.    These  distinctions  have 

already  been  considered  and  noticed  in  the  first  three 
[*T21]  sections  of  this  chapter.     The  following  *is  a  summary 

of  the  principles  recognized  by  the  Code,  and  which  have 
been  established  by  the  leading  decisions  on  this  point: 

1.  Irrelevant  and  redundant  matter  cannot  be  demurred  to, 
but  the  objection  must  be  taken  by  a  motion  to  strike  out.  This 
has  been  held  in  several  cases  which  have  been  already  cited,  and 
may  be  considered  as  well  settled.  Irrelevant  and  redundant 
matters  are  allegations  which  have  no  bearing  on  the  subject  in 
controversy,  and  cannot  properly  be  put  in  issue  when  found  in 
connection  with  such  as  are  pertinent  and  constitute  a  cause  of 
action  or  defense.  A  demurrer  is  proper  only  when  an  entire 
pleading  is  defective.* 

2.  ISTor  is  a  demurrer  proper  in  like  cases  where  the  allegations 
are  indefinite  or  uncertain.  The  remedy  must  be  on  motion  to 
make  the  pleading  more  definite  and  certain  by  amendment." 

3.  The  motion  to  strike  out  is  confined  to  mere  matters  of 
redundancy  and  surplusage.  It  cannot  be  made  to  an  entire 
defense  or  answer,  on  the  ground  that  such  answer  is  irrelevant  or 
redundant,^  otherwise,  if  sliam.^  And  so  where  an  answer  or 
reply  \&  frivolous,  an  application  may  be  made  for  judgment  on 
that  ground ;  °  [but  matter  which  is  proper  in  mitigation  will  not 
be  stricken  out,  provided  the  facts  are  properly  pleaded.''] 

4.  In  some  of  these  cases,  however,  the  plaintiff"  may  demur, 

and  is  not  necessarily  driven  to  his  motion  to  strike  out ; 

P722]  thus,  he  may  demur  to  an  *  answer  or  defense  which  is 

irrelevant,  or  he  may  move  to  strike  it  out  under  section 

1  [Drpm/  V.  Strong,  4  Abb.  N.  S.  3-40,  "  [Ante,  marg.  p.  604,  Collins  v.  Cog- 

37  N.  Y.  372,  3  Keyes,  603 ;  Blosson  v.  gill,  7  Hob.  81 ;  Fasnacht  v.  Stehn,  53 

Barrett,  37  N.  Y.  434.]  Barb.  650. 

■  3  Sandf.  743,  6  How.  Pr.  475,  4  id.  *  Clar/c  v.  Clark,  7  Rob.  276. 

413,  1  Duer,  243  [Collins  v.  Coggill,  7  «  Code,  §  247,  and  see  ante.  pp.  596- 

R.)b.  81].  605. 

»  2  Siuidf.  702.  6  How.  Pr.  221.  ''  Dolnin  v.  Wilder,  7  Rob.  320. 


772  DEMTJEEER.  [CH.  VII. 

152.  "A  pleading,"  says  Justice  Strong,  is  "  irrelevant  which  has 
no  substantial  relation  to  the  controversy  between  the  parties  to 
the  suit/  Such  a  pleading  must,  of  course,  be  insufficient.  And 
so,  too,  a  frivolous  reply  or  answer  may,  if  the  party  prefer,  be 
demurred  to  as  insufficient,  although  the  Code  gives  a  more 
summary  remedy  by  an  application  for  judgment.  And  it  is 
recommended  as  the  more  correct  practice  that,  if  there  exist  any 
doubt  as  to  the  character  of  tlie  defense  or  answer  in  respect  to 
its  sufficiency,  that  is,  whether  it  is  really  a  frivolous  or  irrelevant 
defense  or  not,  it  is  always  proper  to  demur,  instead  of  attempting 
to  get  relief  on  motion.  An  answer  must  be  palpably  frivolous 
to  such  a  degree  as  to  satisfy  the  court  that  it  was  interposed  for 
delay,  or  some  other  improper  motive,  before  it  will  be  struck 
out  on  motion.  If  not  so,  the  court  will  deny  the  motion  and 
leave  the  party  objecting  to  his  demurrer." 

5.  A  sham  answer,  it  seems,  is  to  be  disposed  of  only  on 
motion  to  strike  out,  and  is  not  the  subject  of  demurrer ;  that  is, 
adopting  the  strict  definition  of  the  term,  that  a  shaTn  jpleading 
is  one'  which  is  good  on  its  face,  but  false  in  fact.^  [An  appeal 
does  not   lie  from   the  order,  but   should   be  taken   from   the 

judgment.^] 
[*723]       6.  Where  pleadings  are  defectively  stated,  that  is,  where 

they  violate  some  essential  rules  of  pleading  adopted  by 
the  Code,  as  where  the  reply  is  inconsistent  with  the  complaint, 
or  where  two  or  more  causes  of  action  or  defenses  are  improperly 
joined,  it  seems  that  a  demurrer  may  be  allowed  ;  ^  but  the  party 
aggrieved  may  also  move  to  strike  out,  or  make  the  defective 

'  Seward  v.  Miller,  6  How.  Pr.  313,  should  move,   under  fection    160,   to 

and  see  ante,  p.  602.  have    such    matters    expunged.       If 

'^  5  How.  Pr.    249,   6  id.  31,  312 ;   4  doubts  are  entertained  as  to  the  suffi- 

Sandf.  660,  1  Abb.  Pr.  187,  1  Hill,  663,  ciency  in  law  of  the  answer,  and  the 

370,  673,  18   Wend.  680,  4  Cow.  142.  opinion  of  the  court  is  desired,  it  must 

And  see,  on   this   subject,  pp.  598   to  be   obtained   by    demurrer.     If,   how- 

003,  marq.  p.,  and  cases  there  cited ;  ever,  any  defense  is  palpably  insuffi- 

6  How.  Pr.  355,  5  id.  249  [13  id.  544,  cient,  a  motion  for  judgment  on  the 

o  Abb.  453,  455,  3   id.  3,  3  Hilt.  475,  ground  of  frivoloasness  is  the  proper 

14  Abb.  262.]  course ;  and  if  the  matters  of  defense 

^  The  above  general  rules  are  very  can  be   shown   to   be  clearly  false,  a 

concisely  and  well  stated   by  Justice  motion    to   strike   out   as    sham    will 

B.VHCULO,  in  Nichols  v.  Jones,  6  How.  reach  the  evil." 

Pr.  358,  as  follows :  *  Dahney  v.  Oreeley,  12  Abb.  Pr.  N. 

"  If  an  answer,  otherwise   good,  is  S.  191. 

loaded  with  unnecessary  and  redund-  *  See  what  was  said  on  this  point, 

ant    matters,  the    plaintiff's    counsel  ante,  pages  683,  684,  marg.  p. 


SEC.  v.]      OBJECTION   TO   PLEADING,    HOW   TAKEN.  773 

pleading  more  definite  and  certain ;  and  lie  should  be  required  to 
resort  to  his  motion  whenever  the  defect  can  be  efi'ectuallj  cor- 
rected in  that  way. 

Ohjection,  when  mmj  he  raised  on  the  trial,  or  afterward,  and 
whan  deemed  waived.  —  Every  objection  which  may  now  be  taken 
by  demurrer,  or  which,  if  not  appearing  on  the  face  of  the  com- 
plaint, should  be  set  up  in  the  answer,  is  deemed  to  be  waived  by 
a  failure  to  demur  or  answer,  except  only  the  objection  to  the 
jurisdiction,  which  may  be  raised  at  any  time,  and  the  objection 
that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.'  [If  the  objection  be  that  plaintiff  has  not  legal 
capacity  to  sue,  that  objection  must  be  specifically  taken."] 

This  section  (section  144)  is  exclusively  applicable  to  the 
[*Y24]  pleading  on  the  part  of  the  defendant.  There  *  seems  to 
to  be  a  defect  in  the  Code  in  not  extending  it  to  the  plain- 
tiff's reply  to  a  counter-claim.  Thus,  if  a  defendant  do  not  demur 
for  non-joinder  of  parties,  apparent  in  the  complaint,  he  is  held 
to  have  v-aived  the  objection  ;  but  if  the  same  defects  occur  in  the 
counter-claim,  the  plaintiff  may  omit  to  demur  or  otherwise  point 
them  out  to  the  defendant,  and  yet  be  in  a  situation  to  take 
advantage  of  them  on  the  trial.  A  alone  may  thus  sue  B  on  a 
contract  in  which  C  is  jointly  interested  with  A  as  plaintiff,  and 
if  the  particular  objection  is  not  taken  by  demurrer  or  answer  on 
the  part  of  B  it  cannot  be  used  on  the  trial  to  defeat  the  action ; 
but  in  a  prior  suit  by  B  if  A  should  set  up  the  same  claim  by 
way  of  off-set,  B  need  not  raise  the  objection  of  the  non-joinder 
of  C  in  his  reply,  but  may  prove  it  on  the  trial  in  defeat  of  the 
off-set. 

The  objection  of  an  improper  joinder  of  husband  and  wife  as 
plaintiffs,  as  in  an  action  to  recover  the  possession  of  real  property, 
owned  by  the  wife,  must  be  taken  by  demurrer  if  it  appear  upon 
the  face  of  the  complaint,  and  will  be  deemed  waived  by  answer- 
ing over ; '  so.  a  suit  commenced  by  the  wife  as  sole  plaintifl'.  The 
objection  that  she  is  legally  incapable  of  maintaining  the  suit  by 
reason  of  her  coverture  must  be  taken  by  demurrer,  or,  if  it  do 

'  Code,  §  144 ;  Coffin  v.  Reynolds,  37  '  Ingraham.  and  mfe  v.  Baldwin,  13 
N.  Y.  640  -^Bishop  v.  Bishop,  7  Rob.  195.     Barb.  10  ;  [affirmed,  9  N.  Y.  45]. 

'  Fulton  Fire  Ins.  Co.  v.  Baldwin,  37 
N.  r.  648. 


774  DEMUEEEK.  [CH.  VII. 

not  appear  upon  the  face  of  the  complaint,  by  answer,  otherwise 

it  cannot  be  raised  on  the  trial.' 
[*T25]  *  But  a  defect  of  jurisdiction  is  not  waived  by  a  failure  to 

take  the  objection  by  demurrer  or  answer.  It  maj  be 
shown  at  any  time,  and  whenever  it  appears  it  is  fatal  to  the 
action.  So,  also,  the  objection  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  though  not  taken 
by  demurrer,  is  not  waived."  The  objection  may  be  raised  upon 
the  trial ;  and  where  there  are  two  defendants,  if  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action  against 
one  of  tliem,  and  that  fact  appears  on  the  trial,  the  complaint  will 
be  dismissed  as  to  such  defendant.' 

Objections  to  the  jurisdiction,  and  that  the  complaint  contains 
no  cause  of  action,  may  be  raised  even  when  the  defendant  having 
answered  over,  the  plaintiif  himself  takes  exception  to  such 
answer  by  a  demurrer.  For,  on  the  argument  of  such  demurrer, 
the  defendant  may  attack  the  complaint,  and  if  it  is  defective  in 
either  of  these  particulars,  judgment  will  be  rendered  against 
him  on  demurrer.*  The  objections  also,  it  seems,  may  be  raised 
after  answer  put  in,  on  motion  of  the  defendant  for  judgment 
upon  the  ground  of  such  defects  in  the  complaint.     An  incurable 

defect  in  the  complaint,  says  Justi(5e  Baeculo,  in  Burn- 
[*726]  liam   v.   De  Bevorse   *  et   al.J'   "  is  not  waived  by  any 

pleading,  but  maj^  be  raised  whenever  the  parties  are 
before  the  court,  either  at  special  term  by  motion,  or  on  the  trial 
by  motion  in  arrest  after  verdict.  The  court  may  regard  it  even 
on  general  demurrer."  And  the  objection  may  be  taken  on 
appeal,  either  where  judgment  has  been  rendered  by  default,  or 
after  an  answer  put  in,  and  trial.  For  a  defendant  admits  noth- 
ing more  by  a  default  than  the  truth  of  the  facts  alleged  against 
him ;  and  on  a  trial  the  plaintiff  cannot  prove  a  good  cause  of 
action  under  a  complaint  containing  none ; '  though,  it  is  said,  in 

'  Hastings    v.  McKinley,  1  Smith's  *  The  People  v.  Banker,  8  How.  Pr. 

N.  Y.  Com.  PI.  273 ;   [alQrmed,  Seld.  258,   and   see   ante,  pp.  652,  653,  654 

notes,  Oct.  1853,  p.  19  ;  see,  also,  Clark  marq.  p. 

V.  Crego,  47  Barb.  599  ;  Bobiits  v.  Wells,  ^  8  How.  Pr.  159. 

1  Rob.  606].  *  Ranor  v.  Clark,  7  Barb.  S.  C.  581 

'  Luddington  v.  Teffl,  10  Barb.  S.  C.  Bristol  v.  lienssdear  and  Saratoga  R 

14.  E.  Co.,  9  id.  159. 

^Montgomery  County  Bank  v.  Albany 
City  Bank,  3  Seld.  459. 


SEC.  VI.]       FRIVOLOUS,    AND    PRACTICE   TIlEREOlSr.  775 

Carley  v.  Willcins,^  that  where  the  defendant  seeks  a  new  trial  on 
the  evidence^  and  does  not  appeal  on  the  ground  of  the  insuffi- 
ciency of  the  complaint,  there,  evidence  showing  a  good  cause  of 
action  under  a  bad  complaint  will  sustain  the  judgment.  In  such 
a  case,  where  no  objection  has  been  taken  on  the  trial  to  the  intro- 
duction of  the  evidence,  or  the  variance  between  the  pleading  and 
proof,  the  court  may  sustain  the  judgment  bj  conforming  the 
pleading  to  the  facts  proved." 


[*727]  *  SECTION  VI. 

FRIVOLOUS  DEMURRER  AND  PRACTICE  THEREON. 

The  Code,  as  originally  passed,  contained  no  provision  author- 
izing judgment  on  a  summary  application  in  case  a  demurrer  was 
frivolous.     Section  247,  as  amended  in  1849,  pro\"ides  as  follows : 

"  If  a  demurrer,  answer  or  reply  be  frivolous,  the  party  prejudiced 
thereby,  upon  a  previous  notice  of  five  days,  may  apply  to  a  judge 
of  the  court,  either  in  or  out  of  court,  for  judgment  thereon,  and 
judgment  may  be  given  accordingly." 

It  will  not  be  necessary  or  useful  here  to  notice  the  various 
decisions  made  prior  to  this  amendment  as  affecting  and  regulat- 
ing the  practice  under  the  original  Code.'  The  amendment  itself 
prescribes  specifically  and  definitely  the  practice,  and  points  out 
the  remedy.  The  most  serious  question  likely  to  arise  under  the 
section  in  respect  to  the  demurrer  will  probably  be,  What  is  a 
frivolous  demurrer?  By  a  frivolous  demurrer,  under  the  old 
practice,  was  meant  a  demurrer  interposed  merely  for  delay,  and 
which  had  no  color  or  foundation.*  There  seems,  however,  to 
have  been  a  distinction  recognized  between  such  a  demurrer 
interposed  in  bad  faith,  and  one  which  might,  perhaps, 
[*728]  have  been  put  in  *  with  the  hope  of  its  proving  success- 
ful, although  with  no  expectation  of  its  deciding  the 
cause.  In  the  former  case,  that  is,  when  not  put  in  in  good  faith, 
the  court  would  not  grant  the  defendant  leave  even  on  an  affi- 
davit of  merits  to  plead  over.     But  in  the  latter  case  it  seems  ou 

>  6  Barb.  S.  C.  55.  "  1  Code  R.  25,  49,  84,  3  How.   Pr 

«  Code,  g  173,  post  «02,  marg.  p.  280,  289. 


776  DEMUEKER.  [CH.  VII. 

Bucli  an  affidavit  leave  might  be  obtained.'  Tbis  same  distinction 
seems  to  be  recognized  bj  the  Code.  If  it  appear  that  the 
demurrer  was  interposed  in  good  faith,  the  court,  in  its  discre- 
tion, may  allow  the  party  to  answer."  Perhaps,  therefore,  the 
definition  above,  that  a  frivolous  demurrer  is  one  interposed  merely 
for  delay,  is  too  narrow,  for  a  demurrer  under  the  present,  as 
under  the  old  practice,  may  be  entirely  frivolous,  that  is,  without 
any  color  or  foundation,  and  yet  have  been  put  in  not  for  delay 
alone,  but  with  some  expectation  of  its  success.  In  such  case  it 
would  be  very  properly  overruled  on  summary  application  under 
section  217,  but  the  defendant,  on  the  proper  affidavit,  should  be 
allowed  to  answer.     This  was  intimated  in  the  case  of  Ajppleby 

V.  EUiins^  where,  on  ruling  a  demurrer  to  be  frivolous, 
[*729]  *  judgment  was  directed  for  defendants,  and  there  being 

no  affidavit  of  merits,  leave  to  answer  was  refused ;  an 
answer  in  such  case  was  allowed  in  Enos  and  others  v.  Thomas 
and  others,  at  special  term." 

[The  allowance  or  disallowance  of  a  right  to  amend  on  the 
decision  of  a  demurrer  is  a  matter  of  discretion  for  the  court,' 
and  an  amendment  will  not  be  allowed  unless  the  court  is  satisfied 
that  it  was  interposed  in  good  faith ; '  if  leave  to  amend  has 
been  once  given,  it  will  not  ordinarily  be  again  granted,'  nor  will 
sucii  leave  be  granted  where  it  is  apparent  that  the  party  cannot  in 
the  end  succeed.*  On  leave  to  amend,  the  party  can  add  any  thing 
which  would  perfect  or  strengthen  the  case  already  made  by  him, 
but  cannot  add  a  new  cause  of  action  or  defense."  Although  the 
court  may  grant  leave  to  amend,  it  cannot  compel  an  amendment.*'] 

^  10  Wend.  633.  1-  That  the  complaint  does  not  show 

*  Code,  §  172,  Enos  v.  Thomas,  4  that  the  plaintiff  is  the  lawful  holder 
How.  Pr.  48.  of   the   note  on   which   the  action   is 

*  2  Sandf.  673.  The  complaint  in  brought.  2.  It  is  not  averred  that  the 
that  case  was  as  follows :  "  That  the  said  note  is  due.  3.  The  complaint 
defendant,  on  the  first  of  August,  1849,  does  not  state  facts  sufficient  to  con- 
made  his  promissory  note  as  follows  stitute  a  cause  of  action. 

(setting  forth   a  copy),  and  delivered  *  4  How.  Pr.  48. 

the  same  to  Noah  liidley  (the  payee),  ^  Lowry  v.  Inman,  37  How.  286. 

Avho  th(^reupon  indorsed  the  same  to  *  ()Kgood   v.    Wittlesey,  10  Abb.  134, 

the  plaintiff.     That  the  said  defendant  20  How.  74. 

did  not  pay  the  same  when  it  became  '  Lowry  v.  Inman,  6  Abb.  N.  S.  395. 

duo,  and  that  the  defendant  is  indebted  «  iSnoio  v.  Fourth  Nat.  Bank,  7  Rob. 

to  the  plaintiff  upon  the  same  note  in  480. 

the  sum  of  $100,  besides  interest."  »  Fielden  v.  Carrelli,  16  Abb.  289,  26 

The   defendant    demurred    for   the  How.  173. 

following  causes:  '"  Lord  v.  Vreeland,  13  Abb.  195. 


SEC.  VI.]       FRIVOLOUS,    AND   PEACTICE  THEREON.  777 

It  was  held  in  a  case  under  the  Code,  that  where  a  complaint 
by  an  indorser  of  a  promissory  note  alleged  that  the  plaintifl"  was 
the  "  lawful  holder  "  of  the  note,  and  the  defendant  demurred, 
alleging  for  cause  that  it  did  not  appear  from  the  complaint  that 
the  plaintiff  was  the  "  owner  "  of  the  note,  that  sUch  a  demun-er 
could  not  be  treated  as  frivolous.*  [But  this  clearly  would  not 
now  be  considered  law,  if  the  plaintiff*  was  the  payee  named  in 
the  note,  or  facts  were  alleged  which  showed  title  in  him.]  A 
demurrer  will  be  regarded  as  frivolous  if  it  appears  to  be  taken 
merely  for  delay,  or  if  the  grounds  of  the  demurrer  are  clearly 
untenable.  Thus  it  was  held  at  special  term,  in  Howell  v.  Frazer 
and  others^  that  if  a  party  mistake  his  remedy  and  demur  when 
the  objection  should  be  taken  by  motion  to  make  the  pleading 
more  certain,  the  demurrer  is  frivolous.  In  that  case,  the 
defendant  demurred  because  the  complaint  alleged  that  the 
■plamtiS  Relieved,  etc.,  instead  of  alleging  on  his  infovTnation  and 
helief.  It  was  remarked  by  Justice  MrrcHELL,  "If  a 
[*T30]  pleading  is  correct  in  substance,  ^  but  not  in  form,  the 
remedy  is  not  by  demurrer,  but  by  a  motion  to  make  it 
more  "certain  or  definite,  or  by  some  other  way  than  demurrer. 
The  Code  never  intended  that  judgment  should  be  given  against 
a  party  who  has  merits  for  a  mere  matter  of  form." 

Nor  will  a  demurrer  be  overruled  as  frivolous  in  a  case  where 
the  defendant  demurs  and  answers  to  the  same  cause  of  action. 
In  such  case  the  answer  cannot  be  treated  as  a  nullity,  and  judg- 
ment rendered  for  plaintiff  because  of  the  frivolousness  of  the 
demurrer.  The  proper  course,  it  seems,  is  to  move  to  strike  out 
the  demurrer  or  the  answer.* 

It  will  be  impossible  to  enumerate  the  cases  in  which  a  demur- 
rer may  be  deemed  frivolous ;  nor,  indeed,  is  it  an  easy  matter  to 
lay  down  any  general  rule  that  will  reach  every  variety  of  case. 
A  frivolous  demurrer  is  one  which,  without  argument  and  at  first 
glance,  must  be  pronounced  bad.  The  grounds  thereof  should 
be  clearly  untenable;*  and  if  the  matter  is  fairly  susceptible  of 
argument  it  should  not  be  treated  as  a  fi-ivolous  demurrer.  The 
mere  argument  of  counsel,  in  opposition,  is  not  sufficient;  there 

1  Beech  v.  Gallup,  2  Code  R.  66.  ''  Neefus  v.  E2oppenburgh.  2  Code 

«  6  How.  Pr.  221.  1  C.  R.  N.  S.  271.        276. 
^  Spelman  v.  Weider,  5  How.  Pr.  5. 
98 


778  DEMURKER.  [CIJ.  YII. 

should  be  some  color  or  semblance  of  reality.'  The  dividing 
line,  however,  between  a  real  and  a  frivolous  demurrer,  is  not  by 
any  means  clearly  defined,  and  it  will,  in  general,  rest  much  in 

the  discretion  of  the  court  whether  to  entertain  the 
[*731]  ^  motion  at  chambers  and  on  five  days'  notice,  or  whether 

to  put  the  party  to  his  motion,  on  regular  notice,  at  the 
cii'cuit  court  or  special  term.  This  seems  now  to  be  really  the 
only  practical  point  of  distinction  between  them ;  for  as  all  issues 
of  law  are  now,  by  the  Code,  required  to  be  tried  at  special  term 
or  circuit  court,  and  (unless  otherwise  ordered)  have  preference 
on  the  calender,^  there  will  not  in  general  be  much  delay  in  get- 
ting a  decision.  "Where  there  are  doubts,  therefore,  as  to  the 
frivolousness  of  the  demurrer,  it  will  be  always  better  to  notice 
it  in  the  regular  way  for  the  first  circuit  or  special  term  in  the 
county  where  the  trial  is  to  be  had.* 

A  motion  for  judgment,  on  the  ground  of  the  frivolousness  of 
the  demurrer,  may  be  made  before  the  expiration  of  the  time  to 
amend,  and  if  an  amendment  be  made,  so  that  the  demurrer  is  no 
longer  frivolous,  the  motion  will  be  denied  without  costs."  [It 
may  sometimes  be  important  that  a  demurrer  which  has  been 
overruled  should,  by  amendment  of  the  pleading  or  otherwise,  be 
removed  from  the  record.^  If  it  remain  it  will  be  construed  as  an 
admission  of  the  facts  alleged  in  the  cause  of  action  or  defense 
demurred  to.'] 

>  Graham's  Pr.  759.  ^  Brown  v.  Saratoga  B.  R.,  18  N.  Y. 

*  Code,  i^  255.  495 ;  Mathews  v.  Beach,  8  id.  173. 

3  See  post,  ch.  8,  §  2,  as  to  how  and  «  Cutler  v.  Wright,  22  N.  Y.  472,  26 
where  an  issue  of  law  is  to  be  tried.         Barb.    208 ;    Alderman    v.   French,   1 

*  Gurrie  v.  Baldwin,  4  Sandf.  690.         Pick.  1. 


[*T32]  *  CHAPTER  VIII. 

OF  THE  ISSUE. 

The  parties  having  made  their  various  allegations,  and  an  issue 
being  formed,  presenting  the  points  in  controversy  in  the  suit,  the 
next  consideration  will  be  as  to  the  mode  and  manner  of  disposing 
of  this  issue,  and  as  to  the  legal  effect  of  the  matters  pleaded,  and. 
how  they  are  to  be  used  upon  the  trial.  A  full  consideration  of  this 
subject  would  involve,  to  some  extent,  the  subject  of  practice  in 
courts  of  law.  Keeping  m  view  the  object  of  this  work,  which  has 
been  simj^ly  to  treat  upon  the  pleadings  in  an  action,  as  a  distinct 
branch  from  the  practice,  I  shall  not  attempt  to  comment  at  length 
upon  the  mode  and  manner  of  conducting  the  trial  of  an  issue, 
either  of  law  or  of  fact,  but  will  barely  glance  at  it  for  the  purpose 
of  enabling  the  reader  more  clearly  to  comprehend  the  nature  of 
some  questions  of  pleading,  growing  out  of  and  connected  with  the 
issue. 

The  present  chapter  will  be  divided  into  the  following  sections : 

1.  Issues  of  law  and  of  fact. 

2.  How  and  where  issue  to  be  tried. 
[*733]  *  3.  Effect  of  the  pleadings,  and  what  facts  &T»  deemed  admitted  on 
the  trial. 

4.  Pleadings,  how  to  be  construed.  • 

5.  Special  rules  applicable  to  pleadings. 


SECTION"  I. 

ISSUES  OF  LAW   AND  OF  FACT. 

The  definition  and  nature  of  an  issue  have  not  been  materially 
changed  by  the  Code.  Blackstone  defines  an  issue  to  be  :  "  When 
in  the  course  of  pleading  they  come  to  a  point,  which  is  affirmed 
on  one  side  and  denied  on  the  other,  they  are  then  said  to  be  at 
issue."  '  A  broader  definition,  and  one  more  conformable  to  the 
theory  of  the  Code,  is  given  by  another  writer  thus :  "  An  issue 
is,  when  both  parties  join  upon  somewhat  that  they  refer  unto  a 
trial,  to  make  an  end  of  the  suit." "  The  issue  is  very  accurately 
defined  by  Stephens  in  his  treatise  on  pleading  to  be :  "  Some 

'  3  Black.  Com.  313.  '  Finch  Law,  336, 


780  THE   ISSUE.  [CH.  VIII. 

question,  either  of  fact  or  law,  disputed  between  the  parties,  and 
mutually    proposed  and  accepted  by  them,  as   the  subject  for 

decision." ' 
PTSi]       *  The  Code  defines  an  issue  substantially  in  the  same 
terms : 

Sec.  248.  Issues  arise  upon  the  pleadings,  when  a  fact  or  conclu- 
sion of  law  is  maintained  by  the  one  party  and  controverted  by  the 
other.     They  are  of  two  kinds : 

1.  Of  law ;  and 

2.  Of  fact. 

It  is  obvious  that  the  object  of  all  pleading  is  the  production 
of  an  issue  —  that  which,  in  the  language  of  the  Code,  is  "  main- 
tained by  one  party  and  controverted  by  the  other."  The  con- 
troversy between  the  parties  is  to  be  narrowed  down  to  the  exact 
points  in  dispute,  and  these  are  to  be  referred  to  the  proper  tri- 
bunal for  decision.  The  pleading  is  the  record  of  these  allegations 
to  enable  the  tribunal  before  which  the  issue  is  tried  to  understand 
and  determine  the  precise  points  in  controversy.  There  is  no 
difference  in  this  respect  between  pleadings  at  law  and  in  equity. 
Both  are  designed  "  to  bring  the  matters  in  controversy  between 
the  parties  who  are  interested  therein,  before  the  tribunal  by 
which  they  are  to  be  adjudicated." ' 

Under  the  Code,  as  at  common  law,  issues  are  of  two  kinds,  of 
law  and  of  fact.     They  are  thus  defined : 

Sec.  249.  An  issue  of  law  arises 

1.  Upon  a  demurrer  to  the  complaint,  answer,  or  reply,  or  to  some 
part  thereof 

Sec.  250.  An  issue  of  fact  arises : 
[*735]       *  1.  Upon  a  material  allegation  in  the  complaint,  contro- 
verted by  the  answer ;  or 

2.  Upon  new  ma:ter  in  the  answer,  controverted  by  the  reply;  or 

3.  Upon  new  matter  in  the  reply,  except  an  isjiie  of  law  is  joined 
thereon. 

It  will  thus  be  seen  that  an  issue  of  law  arises  wholly  on  a 
demurrer^  that  is,  where  the  party  taking  such  an  objection 
admits  the  allegations  set  forth  in  the  pleading  of  the  opposite 
party  to  be  true,  but  claims  that  the  allegations  do  not  disclose 
Buch  a  case  on  the  merits  as  constitutes  a  good  cause  of  action  or 
defense.     This  issue  so  raised  is  wholly  a  question  of  law  to  be 

:  Stepli.  on  P].  134.  «  Story's  Eq.  PI.,  g  1. 


SEC.  I.]  OF   LAW   A]S^D   OF   FACT.  781 

tried  bj  the  court.  An  issue  of  fact,  on  tlie  contrary,  arises  on  the 
denial  by  either  party  of  the  allegations  in  a  pleading.  The  alle- 
gation denied  or  controverted,  in  order  to  produce  such  an  issue 
as  is  contemplated  by  the  Code,  must  be  a  "  material  allegation,"  ' 
that  is,  as  I  understand  it,  not  an  allegation  which,  if  disproved, 
would  be  entirely  decisive  of  the  whole  issue,  but  an  allegation 
material  to  the  specific  relief  sought,  whether  in  the  enforcement 
or  protection  of  a  right,  or  the  redress  or  prevention  of  a  wrong, 
and  material  to  the  judgment  which  the  court  is  to  pro- 
[*Y36]  nounce  upon  proof  of  the  facts,  or  such  of  them  as  *entitle 
the  party  to  judgment.  This  issue  so  raised  is  triable  by 
a  jury,  or  in  certain  cases,  by  the  court  sitting  as  a  jury,  or  by 
referees. 

The  Code  provides  further  :  that 

"  Issues,  both  of  law  and  of  fact,  may  arise  upon  different  parts 
of  the  pleadings  in  the  same  action.  In  such  cases  the  issues  of  law 
must  be  first  tried,  unless  the  court  otherwise  direct."  * 

The  words  in  italics  in  the  above  section  were  not  in  the  original 
Code,  and  were  inserted  by  the  amendments  of  1849.  It  has 
been  repeatedly  decided  since  that  amendment,  and  it  is  believed 
the  practice  is  now  well  settled,  that  a  party  cannot  [demur  to  and 
answer  the  same  cause  of  action  or  defense].  Nor  can  he  demur 
to  part  of  one  entire  cause  of  action  and  answer  the  residue.'  In 
Spelman  v.  Weider,^  Justice  Willaed,  in  such  a  case,  refused  to 
treat  the  answer  as  a  nullity  and  to  render  judgment  on  the 
demurrer  as  frivolous,  holding  the  proper  remedy  of  the  party  to 
be  to  move  to  strike  out  one  of  the  pleadings,  and  to  compel  the 
opposite  party  to  elect  by  which  issue  he  would  abide. 

If  it  be  thus  necessary  that  a  separate  issue  of  law  or  of  fact 

be  raised  on  each  distinct  cause  of  action  or  of  defense,  and  that 

a  demurrer  and  answer  cannot  both  be  interposed  to  the  same 

allegations,  so  too  must  an  issue  of  law  or  of  fact  be  joined 

[*73T]  upon  an  <jn?!«V6  cause  of  action  or  defense.   Mere  statements 

*and  allegations  which  do  not  of  themselves  constitute  one 

'Section    250,  Code,   sub.   1.      The  as  is  "  material  "  to  the  nature  of  the 

second  and  third  subdivisions  of  the  relief  sought  or  the  defense  interposed. 

section,  defining  how  an  issue  is  raised  [See  Pardee  v.  Schenck,  11  How.  500  ] 

on  "  new   matter  "  in  the  answer  or  -  Code,  iS;  251. 

reply,  omits  the  word  "material."     It  ^  Infirahnm  v.  Bnldmnn,  12  Barb.  10 

cannot  be  doubted,  however,  that  the  "  4  How.  373,  3  Code  R.  59,  5  How 

'  new  matter  "  spoken  of  is  such  only  5,  id.  206. 


782  THE  ISSUE.  [CH.  VIII. 

entire  ground  of  action  or  defense,  cannot  be  demnrred  to.  I^o 
issue  is  formed  by  such  a  demurrer  capable  of  trial,  and  the  party- 
aggrieved  may  move  to  strike  them  out.' 

Issue  must  he  single.  —  It  is  laid  down  in  the  books  on  plead- 
ing that  an  issue  should  be  single,  certain  and  mateTial?  By 
single  is  not  meant  that  only  one  point-  is  to  be  presented  for 
trial,  or  one  question  to  decide  the  action.  Even  under  the  old 
system  of  pleading  at  law  this  was  not  the  case.'  It  was  found 
that  some  controversies  might  admit  of  many  questions  arising  on 
the  pleadings,  or  distinct  issues,  as,  for  example,  where  several 
distinct  causes  of  action  were  united  in  the  same  declaration,  or 
several  pleas  pleaded  to  the  same  claim.  The  determination  of 
the  whole  matter  in  controversy  necessarily  requked  that  all  these 
several  issues  should  be  decided.  Under  the  old  common-law 
pleadings  it  was  said  that  in  the  case  of  several  claims  united  in 
the  same  declaration,  the  issues  raised  on  each  claim  should  all  be 
decided,  but  that  in  case  of  a  single  claim  the  same  consideration 
did  not  apply,  for  the  decision  of  any  one  of  the  material  issues 
that  may  arise  upon  it  will  be  sufScient  to  dispose  of  the  entire 
claim.*  This  doctrine  is  not  entirely  applicable  to  the 
[*738]  Code,  which  provides  that  "  the  *  defendant  may  set  forth 
as  many  defenses  as  he  shall  have,"  etc.  Thus,  to  a  con- 
tract, he  may  plead  the  statute  of  limitations,  infancy,  duress,  etc., 
and  raise  several  distinct  issues,  the  determination  of  one  of  which 
adversely  to  the  defendant  does  not  necessarily  decide  the  action. 
All  that  is  meant  now  by  the  rule  that  the  issue  must  be  single^ 
is,  that  upon  a  single  claim,  as  for  damages  or  the  recovery  of 
specific  real  or  personal  property,  each  matter  of  defense  set  forth 
shall,  in  the  language  of  the  Code,  be  "  separately  stated,"  and 
that  each  of  such  separate  matters  of  defense  to  each  single  claim 
alleged  shall  present  an  issuable  point,  capable  of  being  tried. 
An  answer,  under  the  Code,  does  not  contain  a  double  defense 
because  it  denies  two  facts,  both  of  which  are  necessary  to  make 
out  a  good  cause  of  action." 

Must  he  certain.  —  The  issue  was  also  required  to  be  certain. 

'  4  How.  413 ;  3  id.  410.  ^  Stepli.  on  PI.  131. 

"■  Stepli.  PL  135, 1  Chit.  PI.  652.  ''  Otis  v.  Boss,  8  How.  Pr.  193. 

s  3  Caines,  162,  1  Burr.  316,  8  Wend. 
129.  2  Johns.  462,  3  Cow.  303,  6  id.  45. 


SEC.  I.]  OF   LAW  AND   OF   FACT.  783 

Bj  this  is  meant  that  the  issue  must  be  particular  or  specific,  as 
opposed  to  undue  generality.  It  was  considered  one  of  the  essen- 
tial qualities  of  the  issue  that  it  should  be  certain.'  A  material 
and  traversable  fact  must  in  general  be  expressly  stated,  and  cannot 
be  inferred  from  other  parts  of  the  pleading."  So,  too,  certainty 
in  the  issue  required  a  certain  time  and  place  to  be  stated  to  every 

material  and  traversable  fact.  This,  however,  is  now  mere 
[*739]  matter  of  form,  unless,  in  those  *  cases  where  time  and 

place  enter  into  the  substance  of  the  contract,  and  must 
be  proved  to  sustain  the  action ;  or  are  necessary  to  apprise  the 
opposite  party  of  the  precise  nature  and  extent  of  the  claim 
relied  on.  So,  too,  the  pleadings  were  required  to  specify  quan- 
tity, quality,  and  value,^  in.  order  to  efiect  this  certainty  in  the 
issue,  which  the  artificial  rules  of  pleading  at  common  law 
required.  The  certainty  required  in  the  pleadings  was  what  was 
called  certainty  to  a  common  intent,*  that  is,  what,  on  a  fair  and 
reasonable  construction,  may  be  called  certain,  without  recurring 
to  possible  facts,^  or,  to  adopt  a  former  definition  of  the  Code,  the 
facts  must  be  stated  in  such  a  manner  as  "  to  enable  a  person  of 
common  understanding  to  know  what  is  intended." 

Must  he  material. —  But  the  essential  point  in  the  issue  was, 
and  under  our  new  system  of  pleading  still  is,  that  it  should  be 
material.  The  pleadings  are,  therefore,  required  to  state  material 
and  issuahle  facts.  No  allegations,  except  such  as  may  be  tra- 
versed and  as  may  properly  be  put  in  issue  and  tried,  can  be 
inserted.  Or,  if  such  allegations  are  inserted,  they  may  be 
entirely  disregarded.  A  neglect  to  answer  them  cannot  in  any 
way  prejudice  the  other  party  ;  for  it  is  only  every  material  alle- 
gation in  the  complaint,  etc.,  which  is  to  be  taken  as  true  unless 

denied. 
[*T4:0]  *  A  demurrer  admits  only  the  facts  stated  in  the  complaint 

which  are  material  to  the  action,  relevant  and  well 
pleaded,  and  does  not  admit  conclusions  or  inferences  of  law.* 
In  analogy  with  this  rule  it  has  been  laid  down  that  such  conclu- 
Bions  and  inferences,  as  well  as  all  other  matter  not  material  to 

»  Steph.  on  PI.  133.  ^  9  Johns.  314,  19  v\.  349. 

*  7  Johns.  75.  «  9  Barb.  S.  C.  301,  Storv's  Eq.  PI., 
3  Steph.  on  PI.  295.  §453. 

*  4  Barb.  593. 


784  .  THE   ISSUE.  [CH.  VIII. 

the  issue,  should  not  be  controverted  or  denied  by  the  pleader ; 
but  that  thej  should  be  entirely  disi'egarded  unless  a  motion  is 
made  to  strike  them  out  as  irrelevant  or  redundant.* 

An  immaterial  issue,  as  contradistinguished  from  a  material 
issue,  is  defined  to  be  an  issue  "  unfit  to  decide  the  action,"  '  one 
that  "  will  not  determine  the  merits  of  the  cause,"  '  "  a  point  not 
decisive  of  the  right  of  the  case."  * 

It  has  been  thought  that  this  rule  cannot  be  applied  to  an  action 
for  equitable  relief,  but  is  merely  an  incident  of  the  mode  of  trial 
in  common-law  actions.'  A  "  material  issue,"  in  the  common-law 
sense,  being  defined  an  issue  decisive  of  the  whole  case ;  in  an 
equity  sense,  an  issue  upon  a  fact  which  has  some  bearing  upon 
the  equity  sought  to  be  established.  It  is  unnecessary  to  repeat 
here  what  was  said  in  the  first  chapter  of  this  w^ork'  relative  to 
this  distinction  —  a  distinction  which  it  is  believed  cannot 
["^74:1]  be  sustained  in  practice  or  upon  principle.  *  If  the 
facts  spoken  of  in  the  case  referred  to  as  having  "  som^ 
bearing  upon  the  equity  sought  to  be  established  "  are  not  mere 
matters  of  evidence,  but  such  as  are  or  may  become  material  to 
the  particular  relief  asked,  then  they  are  such  facts  as  can  prop- 
erly be  put  in  issue  and  tried.  And  although  the  determination 
of  one  of  such  facts  may  not  be  decisive  of  the  whole  case,  yet 
if  such  determination  will  have  an  essential  bearing  upon  the 
relief  demanded,  and  will  materially  afiect  the  judgment  to  be 
rendered,  an  issue  joined  upon  such  fact  cannot  certainly  be 
called  immaterial. 

In  Stafford  v.  Mayor  of  Albany,^  the  court  defined  an  imma- 
terial issue  to  be  "  where  that  which  is  materially  alleged  by  the 
pleading  is  not  traversed,  bufi  an  issue  is  taken  on  such  a  point 
as  will  not  determine  the  merits  of  the  action."  The  court  can 
render  no  judgment  on  a  verdict  on  such  an  issue,  unless,  indeed, 
in  those  cases  where  the  defect  is  not  in  substance,  but  merely  in 
the  form  or  manner  of  statement,  and  which  is  cured  by  the 
verdict.* 

Thus,  in  Swift  v,  Vaughn*  the  plea  that  defendant  did  not 

'  See  Bedell  v.  Stickels,  4  How.  Pr,  "  Wooden  v.  Waffle,  6  How.  Pr.  151. 

432.  *  See  ante,  p.  69,  et  seq.,  marg.  p. 

«  Stepli.  on  PI.  129.  '  6  Johns.  1. 

3  1  Chit.  PI.  692.  8  And  see  post,  §  5  of  this  chapter. 

<  Gould's  PI. ,  ch.  6,  §  27.  »  6  HUl.  488. 


SEC.  I.]  OF   LAW   AT^'"D   OF   FACT.  785 

undertake  and  promise,  within  six  years  next  before  tlie  exliibiting 
of  the  hill.)  was  held  to  raise  an  immaterial  issue.  The  plea 
should  have  denied  that  the  defendant  undertook  and  promised 

within  six  years  next  before  the  covninencement  of  the  suit. 
[*7-i2]  An  example  of  a  similar  immaterial  issue  *  is  given  in 

the  case  of  Mallory  v.  Lamphear, '  under  the  Code,  where, 
in  an  action  on  a  due  bill,  payable  immediately,  the  defendant  in 
his  answer  admitted  making  the  bill,  but  set  up  as  new  matter 
that  it  was  not  made  within  six  years  before  the  commencement 
of  the  action.  This  was  held  to  raise  an  immaterial  issue.  The 
time  when  the  note  took  effect  as  an  obligation,  by  delivery,  not 
the  time  when  it  was  made,  should  have  been  put  in  issue.  A 
variety  of  other  cases,  both  before  and  since  the  Code,  might  be 
cited  in  illustration  of  the  nature  and  character  of  these  imma- 
terial issues,  but  this  can  scarcely  be  necessary.  It  will  be  suffi- 
cient to  add  here  that  an  immaterial  issue  is  raised,  not  only  when 
a  material  allegation  in  the  complaint  is  not  sitfficiently  denied, 
or  when  an  immaterial  allegation,  that  is,  an  allegation  not  con- 
stitutive of  a  cause  of  action,  is  put  in  issue,  but  also  in  all  cases 
when  an  answer  consists  of  facts  or  allegations  which  do  not  con- 
stitute a  defense!'  Let  us  now  briefly  consider  how  an  imma- 
terial issue,  when  it  arises  on  the  pleadings,  is  to  be  disposed  0f. 
The  old  practice  at  common  law  was,  where  an  immaterial 
issue  was  formed,  the  court  ordered  the  parties  to  plead  anew  for 
the  purpose   of  obtaining   a  better   issue.     This   was   called   a 

repleader.'  It  was  only  done  where  it  appeared  that  the 
[*743]  matter,  *if  well  pleaded,  would  be  a  good  defense,  and 

not  in  those  cases  where  it  appeared  that  such  matter 
could  never  be  made  good  by  any  sort  of  plea.*  If  the  defect  is 
in  the  form  or  manner  of  statement,  and  issue  is  taken  in  it,  and 
such  an  immaterial  issue  is  tried,  there  a  repleader  is  proper;  but 
if  defective  in  substance,  and  the  court  can  see  that  in  any  way  of 
putting  it  the  party  can  have  no  merits,  and  the  issue  joined 
thereon  be  found  for  him,  the  court  will  not  grant  a  repleader,  but 
give  judgment   notwithstanding  the  verdict.'     A   repleader   is 

1  8  How  Pr.  491.  ^  Bouv.  Law  Diet.,  title,  Repleader 

2  See  Lane  v.  'Gilbert,  9  How.  150,  for        *  1  Burr.  Pr.  301. 

an  example  of  this  kind  of  immaterial        ^  Otis  v.  Eitclicock,  6  W  end.  4dd. 
issue. 

99 


786  THE  ISSUE.  [CH.  VIII. 

always  awarded  on  the  form  and  manner  of  pleading,  and  not  on 
tlie  merits.* 

How  applicable  to  the  Code — The  principles  are  not  entirely 
inapplicable  to  pleadings  and  practice  under  the  Code.  Tlie  ques- 
tion may  arise,  how  is  an  immaterial  issue  to  be  disposed  of? 
Doubtless,  the  court,  as  under  the  old  practice,  if  the  defect  be 
not  in  the  form  or  manner  of  the  statement,  but  such  as  to  render 
it  apparent  that  no  manner  of  setting  forth  the  matter  will  avail 
to  raise  a  material  issue,  may  render  judgment,  and  even  if  an 
issue  be  joined,  and  found  for  the  defendant,  the  court  may  render 
judgment  against  him  notwithstanding  the  verdict.  If  such 
immaterial  issue  is  raised  on  an  answer,  setting  up  facts  which 

constitute  no  defense,  the  court  may  disregard  the  answer 
[*T44]  entirely  on  the  trial,  and  direct  the  jury  to  assess  *  the 

damages  ;  "^  or,  if  a  verdict  be  rendered  for  defendant, 
may  direct  judgment  for  the  plaintiff,  as  in  case  of  judgment  non 
obstante  veredicto^  Where  the  complaint .  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  and  a  general  or  specific 
denial  is  interposed,  the  issue  is  clearly  immaterial.  Such  an  issue 
is  incapable  of  being  tried.  The  plaintiff  can  give  no  evidence 
of  any  material  fact  not  alleged  in  his  complaint ;  in  other  words, 
he  cannot  prove  a  good  cause  of  action  under  a  complaint  con- 
taining none."  The  Code  itself  provides  that  a  neglect  to  demur 
to  such  a  complaint  does  not  remedy  the  defect ; '  a  verdict  or 
report  of  referees  and  judgment  will  not  cure  such  an  immaterial 
issue.  The  defendant  might  move  in  arrest  of  judgment,  or,  fail- 
ing to  do  that,  appeal  from  the  judgment.' 

It  is  said  by  Justice  Barculo,  in  Fox  v.  Hunt^  to  be  the  cor- 
rect practice  at  the  circuit  to  lay  out  of  the  case  all  the  irrelevant 
allegations,  as  well  as  the  immaterial  issues,  contained  in  the 
pleadings,  and  hold  the  parties  to  trial  upon  the  material  issues  or 

points  in  the  case.  This  has  been  fully  approved  by  sub- 
[*74:5]  sequent  decisions;  *  and  the  same  rule  of  *  practice  is  laid 

down  by  the  court  of  appeals,  in  the  case  of  Corning  v. 

'  Bdlms  V.  Shannon,  2  Hill,  86.  «  Rayner    v.    Clarh,  7    Barb.    581 ; 

»  Fox  V.  Huvt,  8  How.  Pr.  12.  Noxon  v.  Bentlei/.  7  How.  Pr.  316. 

^Malloryv.Lamphear,^Yioyv.  Pr.401.  ''  8  How.  Pr.  12. 

*  Brifitol  V.  Van  lienHadacr  <&  Sara-  "  Richtmcycr  v.  Ilaskim,  9  How.  Pr. 

iogn  Railroad  Co.,  9  Barb.  lo9.  481  ;  Myntt  v.  Saratofja    Mutual  Tna. 

»  Am.  Code,  i^  148.  Co.,  id.  4S8  ;  ir/'V,^  v.  Forest,  2  Diier,  310. 


SEC.  I.J  OF  LAW  AND   OF  FACT.  787 

Corning,'  namely,  that  the  circuit  judge  is  not  bound  to  try,  or 
receive  evidence  in  support  of,  an  immaterial  issue,  even  thouo-h 
it  has  not  been  struck  out,  but  still  remains  upon  the  record.  The 
objection  tc  such  an  issue  may  be  taken  at  any  stage  of  the  pro- 
ceedings, either  at  the  special  term  by  motion,  or  on  the  trial  at 
circuit,  or  by  motion  in  arrest  of  judgment,"  and  even  upon  appeal. 
It  has  been  held,  since  the  Code,'  that  where  a  good  cause  of 
action  has  been  established  by  proof,  without  objection  under 
such  an  issue,  there  the  defendant  lost  his  riglit  on  a  case  made 
to  review  the  evidence  and  on  motion  for  a  new  trial,  to  raise  an 

objection  to  the  sufficiency  of  the  complaint." 
[*746]       *  The  rule  in  equity  was,  that  if  the  plaintiff  made  out 

a  good  case  in  evidence,  but  different  from  the  case  stated 
in  his  bill,  the  cause  would  be  dismissed  at  the  hearing."  And 
our  courts  of  law  and  equity  have  constantly  acted  upon  the 
same  doctrine.  Thus,  in  the  late  case  of  Field  v.  Mayor,  etG.,  of 
New  York'  in  the  court  of  appeals,  it  was  ruled  that  facts  proved 
but  not  pleaded  are  not  available  to  the  party  for  any  purpose ; 
and  in  Bailey  v.  liyder,  that  no  decree  can  be  made  in  favor  of 
a  complaint  on  grounds  not  stated  in  his  bill.  In  the  latter  case, 
'A  was  decided  that  the  absence  of  allegations  of  fraud  in  a  plead- 
ing in  equity  precluded  all  proof  of  that  nature. 

The     same     rule     was    applicable    to     admiralty    pleadings, 

founded  upon  the  liberal  principles  of  the  civil  law. 
[*747]  *  If  the  information  or  libel  is  defective,  the  defect  is  not 

cured  by  evidence  of  the  material  facts  omitted  to  be 
averred ;  and  the  objection  may  be  taken  even  on  appeal,  though 
not  raised  on  the  trial."  The  maxim,  that  the  decree  must  be 
secundum  allegata  i^'s,  vieW  0,9,  seGU7idmn  probata,  says  Chief  Justice 
Maeshall,  is  "  essential  to  the  due  administration  of  justice  in 

'  2  Seia.  97.  «  2  Seld.  179  ;  [Wright  v.  Dchiireld. 

*  Btirnham  v.  Be  Bevorse  et  al,  8  25  N.  Y.  2G6 ;  Rome  Exchange  Bank  v. 
How.  159  ;  Noxon  v.  Bentley,  7  id.  816.     Eames,  1  Kcves,  588;  Tell  v.  Beyer, 'S8 

3  Carlei/v.  Wilkins,  6  Barb.  557.  N.  Y.  IGl  ;  Paige  v.  Willef.t.  38  id.  28  ; 

*  [Sc7dassel  v.  WiUett,  34  Barb.  615 ;  Burand  v.  Hankerson,  89  id.  287 ; 
Aiihley  v.  Marshall,  29  N.  Y.  494;  Aiiable  v.  Conklin,  25  id.  470;  Camp. 
Belknap  v.  Sealey,  14  id.  143 ;  iV.  Y.  bell  v.  Consal^g,  25  id,  613,  aute,  472, 
Cent.  Ins.  Co.  v.  Nat.  Prot.  Ins.  Co.,  14  marg.  p.]. 

id.  86;   Wood  \.    TFooc?,  26  Barb.  359  ;  '  Court  of  Appeals,  Dec.  2,  1852. 

Stickncy  v.  Blair,  50  id.  342,  ante,  472,  »  Schooner  Iloppct  v.  United  /States,  7 

marg.  p.].  Cranch,  389. 
'  Lube's  Eq.  PI.  19. 


788  THE   ISSUE.  [CH.  VIII, 

all  courts."  The  rule  is  founded  in  sound  reason  and  good  sense 
and  is  no  doubt  fully  applicable  to  our  present  system  of  pleadings. 
It  is  presumed  tliat  under  the  present  system  the  practice  of 
granting  a  repleader  in  cases  of  an  immaterial  issue  no  longer 
exists.  Where  the  issue  is  fatally  defective  and  cannot  be  cured 
by  amendment,  the  court,  as  under  the  old  system,  can  effectually 
dispose  of  the  question.  In  cases  where,  under  the  old  practice, 
a  repleader  would  have  been  proper  after  verdict,  for  some  defec- 
tive manner  of  statement,  the  same  thing  can  now  be  accomplished 
by  amendment,'  the  Code  providing  for  amendments  before  or 
after  judgment,  by  inserting  other  allegations  material  to  the  case, 
or  by  conforming  the  pleading  or  proceeding  to  the  facts  proved  * 

[*748]  *SECTION  II. 

ISSUES,   HOW  AND  WHERE  TRIED. 

It  remains  briefly  to  consider  how  and  where  the  issues  in  an 
action  are  to  be  tried,  and  first : 

Issues,  Twvo  tried.  —  A  trial  is  defined  by  the  Code  to  be  "  the 
judicial  examination  of  the  issues  between  the  parties,  whether 
they  be  issues  of  law  or  of  fact."  ' 

In  regard  to  the  mode  of  trial,  it  is  provided,  as  the  Code  now 
stands,  that 

"  All  issues  of  fact,  triable  by  a  jury,  or  by  the  court,  must  be  tried 
before  a  single  judge.  Issues  of  fact  in  the  supreme  court  must  be 
tried  at  a  circuit  court  when  the  trial  is  by  jury;  otherwise  at  a  cir- 
cuit court  or  special  term,  as  the  court  may  by  its  rules  prescribe. 
Issues  of  law  must  be  tried  at  a  circuit  court  or  special  term,  and 
shall,  unless  the  court  otherwise  direct,  have  preference  on  the 
calendar."  * 

[On  demurrer  to  one  of  several  defenses  in  an  answer,  it  has 
been  held  that  the  plaintiff  might  notice  the  issues  of  fact  for 
trial,'  but  this  we  doubt,  as,  on  disposing  of  the  issues  of  law, 
another  trial  might  be  necessary.] 

The  Code  provides  three  modes  of  trial  —  by  jury,  by  the  court, 
and  by  referees.     An  issue  of  law  is  to  be  tried  at  a  circuit  court 

'  Corning  v.  Corning,  1  Code  R.  N.  ^  Code,  §  253 ;  see  Dodge  v.  Curry,  4 
8. 351.  How.  133. 

«  Code,  §  173,  7  Barb.  S.  C.  13.  *  Sec.  255. 

*  Palmer  v.  Smedley,  13  Abb.  185. 


SEC.  II.]  HOW   AND   WHERE  TRIED.  789 

or  special  term,  and  by  the  court.  It  is  not  a  proper  subject  for 
a  trial  by  jury.  It  may,  however,  by  consent  of  parties  be  referred.' 
Issues  of  fact  are  to  be  tried  in  one  of  three  ways  above  men- 
tioned. 
[*749]  *  It  has  been  a  question  how  far  the  Code  has  really 
effected  an  uniformity  of  trial  of  issues  of  fact  in  all  cases, 
and  whether  a  distinction  is  not  still  recognized  between  the  trial 
of  cases  for  legal,  and  those  for  equitable  relief.  So  far  as  the 
trial  by  the  court  or  by  referees  is  concerned,  the  mode  of  trial  is 
equally  applicable  to  both  classes  of  cases.  It  is  provided  by  the 
new  constitution  that  "  testimony  in  equity  cases  shall  be  taken 
in  like  manner  as  in  cases  at  law," "  that  is  orally,  in  open  court, 
or  before  a  referee  when  the  issue  is  referred.  So  far,  therefore, 
as  issues  of  law  are  concerned,  and  trials  of  issues  of  fact  before 
the  court,  or  before  referees,  there  is  nothing  to  prevent  the 
attainment  of  a  perfect  uniformity  in  the  mode  of  trial,  as  well  as 
in  the  other  proceedings  in  the  action. 

But  it  has  been  supposed  that  there  is  a  difference  in  respect  to 
trials  of  issues  of  fact  before  a  jury,  and  that  an  uniform  mode  of 
trial  has  not  really  been  provided  by  the  Code.'  If  this  be  so,  it 
is  certainly  the  reverse  of  what  the  commissioners  intended.  In 
their  remarks  on  the  title  relative  to  "  Trial  and  judgment  in  civil 
actions,"  they  state  very  explicitly,  that  a  main  object  has  been  to 
attain  this  uniformity  of  trial,  and  further  express  the  opinion, 
that  there  is  nothing  either  in  the  nature  of  equity  cases,  the 
number  and  variety  of  the  questions  raised  in  them,  or 
[*750]  the  form  of  the  pleadings,  *  which  renders  them  unfitted 
to  be  tried  by  a  jury.*  The  design  seems  to  have  been, 
however,  to  limit  the  trial  and  decision  of  equity  cases,  or  per- 
haps more  properly  speaking,  of  all  cases  other  than  those  which 
the  constitution  expressly  declared  should  be  triable  by  jury,' 

1  Code,  §  270.  ties  in  all  civil  cases,  in  tbo  manner  to 

"^  Art  6,  §  10.  be  prescribed  by  law."     Tbe  cases  in 

3  See  4  How.  Pr.  423,  3  C.  R.  49,  5  which  it  has  been  heretofore  used  are 

How.  216,  9  Barb.  633,  4  Sandf.  6o3.  cas.  s    at   common-law,  claiming  com- 

■«  First  Rep.  Com.,  pp.  176  to  181.  pensation  in   damages,  or  recovery  of 

5  Art.  1,  g  2,  Cou.-^titution  provides  speciiic    real    or    personal     property. 

•'the   trial    by    jury   in   all    ca.se.s    in  Except    that   a   reference    might    be 

which   it   has   been    heretofore   used  ordered  wlien  the  trial  would  require 

shall  remain  invi;)late  forever.     Eut  a  the  examination  of  a  long  account. 

jury  trial  may  be  waived  b}'  the    par- 


790  THE  ISSUE.  [CH.  VIII. 

mainly  to  the  court  and  to  referees.  Accordingly,  tliey  provided 
first  for  the  trial  by  jury  of  that  class  of  cases  indicated  by  the 
constitution,  namely,  for  the  recovery  of  money  damages  or 
■specific  real  or  personal  property.  The  section,  as  amended  in 
1849,  to  include  divorce  for  adultery,  is  as  follows : 

"  An  issue  of  law  must  be  tried  by  the  court,  unless  it  be  referred, 
as  provided  in  sections  270  and  271.  An  issue  of  fact,  in  an  action 
for  the  recovery  of  money  only,  or  of  specific  real  or  personal  prop- 
erty, or  for  a  divorce  from  the  marriage  contract  on  the  ground  of 
adultery,  must  be  tried  by  a  jury,  unless  a  jury  trial  be  waived,  as 
provided  in  section  2G5,  or  a  reference  be  ordered,  as  provided  in 
sections  270  and  271." ' 

[*T51]  "^  The  "  specific  real  or  personal  property  "  mentioned 
in  the  above  section  as  a  claim  properly  triable  by  jury, 
has  reference  only  to  actions  for  the  recovery  of  chattels,  equiva- 
lent to  the  old  action  of  replevin,  or  the  recovery  of  the  posses- 
sion of  real  estate,  as  in  the  action  of  ejectment,  and  does  not 
relate  to  claims  ui  equity.^  The  Code,  therefore,  gives  the  party 
a  right  to  his  trial  by  jury  only  in  those  cases  where  it  was  pre- 
viously guaranteed  by  the  constitution,  and  in  the  case  of  a 
divorce  from  marriage  on  the  ground  of  adultery.  The  revisers, 
however,  evidently  contemplated  extending,  rather  than  restrict- 
ing, the  trial  by  jury,  and  of  making  it  equally  applicable  to  all 
classes  of  cases,  whether  legal  or  equitable.  Accordingly  the 
court  is  clothed  with  power  to  order  the  whole,  or  a  part  of  any 
issue  to  be  tried  hy  jury. 

Every  other  issue  is  triable  by  the  court,  which,  however,  may 
order  the  whole  issue,  or  any  specific  question  of  fact  involved 
therein,  to  be  tried  by  a  jury ;  or  may  refer  it  as  provided  in  sections 
270  and  271.' 

If  any  such  distinction  therefore  exists,  as  to  the  mode  of  trial, 
or  the  forum  before  which  the  trial  shall  be  had,  between  claims 
for  legal  and  equitable  relief,  as  is  supposed  in  Hill  v.  McCarty^ 

'  Code,   §   253.     Section  270,  above  and    3d.  Where   a  question    of    fact 

referred  to,  provides  for  the  reference  arises   in   the   action   otherwise   than 

of  any  issue  by   consent  of  parties,  upon  the   pleadings.     The  court  lias 

Section  271  for  a  reference.   1st.  Where  no  power  to  order  a  reference  in  any 

the  trial  shall  require  the  examination  other  cases. 

of  a  long  account;  2d.  Where  the  tak-  *  t'nhoon  v.  Bank  of  Utica,  4  How 

iiiii^  of  an  account,  or  the  proof  of  any  Pr.  423. 

fact,  i.-;  necessary. before  judgment  or  ^  Code,  Ji  254. 

for  carrying  the  judgment  into  eflect;  *  3  Code  R.  49. 


3EC.  II.]  HOW   AND   WHERE  TKIED.  791 

and  in  Crary  v.  Goodman,^  it  is  a  distinction  resting 
[*752]  entirely  with  the  court  to  preserve  or  abolish."  *  The 
court  may  order  "  the  whole  issue  "  (in  every  case)  to  be 
tried  by  a  jury,  and  certainly,  in  such  case,  the  mode  of  trial  will 
be  uniform,  as  the  rest  of  the  proceedings,  and  the  pleadings  are 
required  to  be,  in  all  classes  of  cases.  The  constitution  requires 
certain  cases  to  be  tried  by  a  jury  —  that  is,  cases  at  common  law. 
Tlie  legislature  could  not  repeal  this  provision.  The  Code,  with- 
out expressly  requiring  equity  cases  to  be  tried  the  same  way, 
except  in  an  action  for  divorce  for  adultery,  provides  that  they 
may  be  so  tried  in  the  discretion  of  the  court.  In  order  to  carry 
this  object  into  effect  the  court  by  its  general  rules  provides  that 
where  either  party  to  such  an  issue  desires  a  trial  by  jury  he  may, 
within  ten  days  after  issue  joined,  give  notice  of  a  motion  to  set- 
tle the  issues,  and  such  issues  are  to  be  settled  in  the  form  pre- 
scribed in  section  72  of  the  Code." 

M.  Issues,  where  tried. —  The  Code  has  made  specific  pro- 
visions respecting  the  place  of  the  trial  of  civil  actions,  and  under 
these  provisions  a  variety  of  decisions  have  been  made  which 
regard  mainly  the  practice  of  the  court  in  changing  the  venue  as 
it  was  called,  or  place  of  trial. 

At  common  law,  the  venue  was  either  local  or  transitory.  If 
local,  it  must  be  laid  in  the  county,  and  the  cause  tried  in  the 
county  where  the  cause  of  action  arose.  If  transitory,  it  could  be 
laid  in  any  county,  and  the  cause  of  action  tried  in  such 
[*753]  county,  subject,  however,  to  its  being  changed  by  the 
court,  in  some  cases,  if  not  laid  in  the  county  where  the 
cause  of  action  really  arose.*  It  is  perhaps  unnecessary,  under 
our  system,  to  inquire  in  what  cases  at  common  law  or  under  the 
Eevised  Statutes,'  an  action  was  said  to  be  local,  and  in  what 
cases  transitory.  A  party  is  not  at  liberty  now  to  lay  his  venue 
in  any  county  he  may  choose  to  designate  in  the  complaint,  even 
in  a  transitory  action,  except  in  the  single  case  of  all  the  parties 
being  non-residents.* 

The  following  actions,  by  section  123  of  the  Code,  must  be 
1  9  Barb.  S.  C.  ek  cited  in  notes  to  this  rule  Wait's  Code 

»Per   Pakker,  J..    Southworth    v.     V-^^^X^'^^'^^'Ji^^^^^     \   n^ 
Ci.rto,  6How.  Pr'  271.  M^'^fJk  S  o  fZ   sl  k2« 

»  Rules    Sup.    Court,   40.   See  cases        '  See  2  R.  S  409,  2  Edm.  St.  436. 

«  Code,  §  12o. 


792  THE  ISSUE.  [CH.  VIII. 

tried  in  the  conntj  in  whicli  the  subject  of  the  action,  or  some 
part  thereof,  is  situated,  subject  to  the  power  of  the  court  to 
change  the  place  of  trial  in  the  cases  provided  bj  statute. 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest 
therein,  or  for  the  determination  in  any  form  of  such  right  or 
interest,  and  for  injuries  to  real  property. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  a  mortgage  of  real  property. 

4.  For  the  recovery  of  personal  property  distrained  for  any  cause. 

[The  pleader  must  name  the  place  of  trial  in  the  proper  county 
or  subject  himself  to  a  motion  to  change  it.  An  action  to  restrain 
a  threatened  injury  to  real  estate  is  local.'  So  to  have  a  convey- 
ance of  real  estate  declared  invalid  or  declared  a  mortgage."  An 
action  by  the  officers  of  a  county  or  town  against  officers  of 
another  cDunty  or  town,  in  another  county,  cannot  be  brought  in 
either  county,  but  must  be  brought  in  some  other  county  adjoin- 
ing that  of  the  defendants.'  An  action  against  a  national  bank 
must  be  brought  in  the  county  where  the  association  is  established.*] 

The  following  actions,  by  section  124,  must  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof,  arose,  subject  to  the 
like  power  of  the  court  to  change  the  place  of  trial  in  the  cases 
provided  by  statute. 

[*754]  1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute,  except  that  when  it  is  imposed  for  an  offense  com- 
mitted on  a  lake,  river  or  other  stream  of  water,  situated  in  two  or 
more  counties,  the  action  may  be  brought  in  any  county  bordering 
on  such  lake,  river  or  stream,  and  opposite  to  the  place  where  the 
offense  was  committed. 

2.  Against  a  public  officer  or  person  specially  appointed  to  exe- 
cute his  duties,  for  an  act  done  by  him  in  virtue  of  his  office,  or 
against  a  person  who,  by  his  command  or  in  his  aid,  shall  do  any 
thing  touching  the  duties  of  such  officer. 

And  by  section  125 : 

In  all  other  cases  the  action  shall  be  tried  in  the  county  in  which 
the  parties,  or  any  of  them,  shall  reside  at  the  commencement  of 
the  action ;  or,  if  none  of  the  parties  shall  reside  in  the  State,  the 
same  may  be  tried  in  any  county  which  the  plaintiff  shall  designate 

>  Leland  v.  Eathorn,  42  N.  Y.  547,  Laws   1843,  p.  257,  2  Edm.   St.  365 ; 

9  Abb.  N.  S.  97.  Lapham  v.  Rice,  63  Barb.  485. 

^Bush  V.  Treadwell,  11   Abb.  N.  S.  ■*  13  U.  S.  Stat,  at  Large,  116,  §  57, 

27.     See  Ely  v.  Lotcenstein,  9  id.  42;  2  Bright.    Dig.   71,  g   60;    Crocker  v. 

Htibhell  v.  Sibley,  4  id.  403;  and  cases  Marine,  etc.,  101  Mass.  240;  Cadle  v. 

cited  in  Wait's  &  Voorhies'  Code,  i;  123.  Tracy,  il  Blatch.  101 ;  contra,  Cooke  v 

*  2  R.  S.  353,  $5  14,  as  amended  by  iSiute  JS'ationul,  etc.,  52  N.  Y.  96. 


SEC.  II.]  HOW  AWj     where  TRIED.  793 

in  his  complaint ;  sv;bject,  however,  to  the  power  of  the  court  to 
change  the  place  of  trial  in  the  cases  provided  by  statute.' 

It  was  held  in  an  early  case  under  the  new  practice,"  that  a 
judgment  on  ftiilure  to  answer  was  a  trial  within  the  meaning  of 
the  Code,  and  that  the  application  for  judgment  must  be  made  in 
the  county  designated  in  the  complaint  as  the  place  of  trial.  The 
supreme  court,  since  that  case,  by  its  general  rules,  per- 
[*755]  mits  an  application  for  judgment  on  default  *  to  be  made 
in  any  county  of  the  district,  embracing  the  county  in 
which  the  action  is  triable,  or  in  an  adjoining  county  ;  such  appli- 
cation to  be  made  at  any  special  term,  and  also  at  a  circuit  court 
in  the  county  where  the  action  is  triable.  But  when  a  reference 
or  writ  of  inquiry  shall  be  ordered,  the  same  shall  be  executed  in 
the  county  in  which  the  action  is  triable.'  This  seems  to  be 
regarded  as  simply  a  question  of  practice,  within  the  power  of  the 
supreme  court  to  change,  alter  or  modify  by  its  general  rules,  and 
I  believe  it  has  not  been  doubted  that  it  is  competent  for  the  court 
to  establish  such  a  rule,  notwithstanding  the  decision  above 
referred  to. 

A  trial,  according  to  Mr.  Justice  Geidley,  is  a  final  disposition 
of  the  cause,  and  does  not  require  an  actual  "judicial  examina- 
tion of  the  issues."  Therefore,  when  the  plaintiff  fails  to  appear 
on  the  calling  of  a  cause,  and  the  complaint  is  dismissed,  it  is 
equivalent  to  a  "  trial."  * 

The  examination  of  an  issue  of  law  as  well  as  of  fact  is  also  a 
"  trial."     It  is  so  expressly  defined  by  the  Code  : ' 

§  252.  A  trial  is  the  judicial  examination  of  the  issues  between 
the  parties,  whether  they  be  issues  of  law  or  of  fact.* 

This  section  was  struck  out  by  the  amendments  of  1851 ;  issues 

of  law  were,  made  triable  at  the  general  term,  and  of 

[*756]  course  the  provisions  of  the  Code  respecting  *the  place 

1  The  first  two  sections  above  quoted  county,    which    section     was     subse- 

are  similar  to   the  provisions  of  the  quently,  tlie  same  year,  repealed. 
Revised  Statutes  (8d  ed.,  p.  506),  rela-        '^  Warner  v.  Kcnmi,  ?>  How  Pr.  323. 

tive  to  the  venue  in  civil  actions.    The  See  also  anonymous  case,  1  Code,  83  ; 

last  section   may  be  said  to  be  new,  Roberts  \.  Morrison,  "!  How.  Pr.  396. 
though  similar  to  the  46th  section  of         ^  Supn^me  Court  Rules.  33. 
the  judiciary  act  of  1847,  requiring  the         *  Dodd  v.  Carry  A  How.  123. 
venue  to  be  laid  in  a  county  where  one         ^  Original  Code,  ^  207. 
of  the  parties  resided,  or  an  adjoining        «  Place  v.  Butternuts,  etc..  28  How. 


184. 


100 


794  .  THE  ISSUE.  [CH.  VIII  > 

of  trial,  liad  no  farther  reference  to  such  issues.  But  the 
section  has  been  restored  by  the  late  amendments,  and  the  ques- 
tion occurs,  whether  the  provisions  of  the  Code  respecting  the 
place  of  trial  are  to  be  literally  construed  as  intending  to  embrace 
both  kind  of  issues.  In  analogy  to  other  proceedings  under  the 
Code,  and  with  reference  to  the  general  uniformity  of  the  system, 
I  should  not  hesitate,  if  this  were  an  original  question,  to  answer 
it  in  the  affirmative.  There  are,  however,  contrary  decisions.  In 
the  case  of  Gould  v.  Cha])in^  it  was  said  that  there  is  no  statute 
under  which  courts  could  order  an  issue  of  law  to  be  tried  out  of 
the  county  specified  in  the  complaint ;  and  the  cause  must  for  this 
purpose  be  triable  in  the  district  where  the  venue  is.  This  dictum 
was  followed  by  Mr.  Justice  Wlllaed  in  a  case  arising  before  the 
amendments  of  1851  ^  and  which  directly  involved  the  question. 
That  able  jurist,  whose  opinions  in  every  case  are  certainly 
entitled  to  the  highest  respect,  held  that  title  four  of  part  second 
of  the  Code,  relative  to  the  place  of  trial  of  civil  actions,  related 
exclusively  to  issues  of  fact,  notwithstanding  the  definition  of 
the  Code  that  the  determination  of  an  issue  of  law  is  also  a 
"  trial."  He  was  of  the  opinion  that  the  argument  of  a  demur- 
rer might  be  brought  on  at  any  special  term  in  the  district, 
[*75T]  or  a  county  in  another  district  adjoining  *  the  county 
mentioned  in  the  complaint.  The  author  is  not  aware 
that  this  practice  is  now  pursued,  or  that  it  has  received  the 
sanction  of  any  other  judge.  In  Bently  v.  Jones^  it  was  held 
that  the  decision  upon  a  demurrer  was  not  an  order  but  a  judg- 
ment. This  was  a  decision  at  general  term.*  The  same  doctrine 
was  held  at  a  general  term  in  the  fourth  district,  in  the  case  of 
Mitchell  v.  Vieed\^  and  this,  too,  where  the  demurrer  was  over- 
ruled by  a  judge  at  chambers  as  frivolous ;  and  in  lidberts  v. 
Morrison^  at   the   New   York   special   term,  it  was   expressly 

•  4  How.   Pr.   188 ;  Monroe  special    also,  Rae  v.  Washington  Mut.  Ins.  Co., 
term.  Dec,  1849.  6  id.  21. 

•^  Ward   V.   Davis,  6  Pr.  274,  Fulton  «  7   How.   Pr.   869.     In    Warner  v. 

special  term.  Kenny,  1  Code  R.  96,  it  was  held  that 

^  4  How.  Pr.  335.  the   mere   rendering  of  judgment   in 

■*  See,  also.  King  v.  Stafford,  5  How.  case  of  default,  where   no   issue   had 

Pr.  30  ;  and  Wood  v.  Lambert,  3  Sandf.  been  joined,  was  "  a  trial,"  within  the 

724.  meaning  of   tl\e  Code,  sufficient  to  fix 

*  6  How.  Pr,  127  ;  S.  C.,5  id.  30.   See,  the  place  where  such  judgment  must 

be  rendered. 


SKO.  II.J  HOW   AND   WHERE  TRIED.  795 

decided  that  a  motion  for  judgment  on  account  of  the  frivolous- 
ness  of  a  demurrer  is  the  trial  of  an  issioe  of  law.  The  New 
York  superior  court,  on  consultation  of  all  the  judges,  in  Druin- 
mond  V.  Ilusson,^  laid  down  a  general  rule  on  this  subject  as 
follows :  That  the  decision  upon  a  demurrer  is  in  the  nature  of  a 
judgment,  where  the  demurrer  goes  to  a7i  entire  pleading  /  but 
if  it  is  partial  onlj,  the  decision,  sustaining  or  overruling  it,  is  an 
order  /  in  the  latter  case,  of  course,  the  motion  is  not  a  trial  of 

an  issue.  But  in  the  recently  reported  case  of  Nolion  v. 
[*758]  The  Western  *  Railroad  Corjporation^  at  a  genei-al  term 

in  the  third  district,  this  distinction  was  thought  not  well 
taken,  and  that,  for  the  purposes  of  an  appeal,  a  decision,  sustain- 
ing or  overruling  a  demurrer,  was  in  all  cases  an  order.'  These 
decisions  are  important  in  this  connection  only  so  far  as  they  bear 
upon  the  question,  whether  the  hearing  and  decision  of  a  demur- 
rer is  a  trial  or  not  within  the  meaning  of  the  section  of  the  Code 
regulating  the  place  of  trial.  The  case  last  cited  appears  to  sus- 
tain the  conclusion  of  Judge  Willakd,  in  ^YaTd  v.  Davis,  that 
the  argument  of  a  demurrer  is  not  a  trial  of  an  issue,  within  the 
meaning  of  that  section,  the  decision  being  a  mere  order  granted 
upon  a  motion.  The  majority  of  the  cases,  however,  seem  to 
regard  it  in  a  difl'erent  light,  and  the  more  safe  practice,  at  all 
events,  is,  since  the  late  amendments  have  restored  section  252  of 
the  Code,  defining  what  a  trial  is,  to  consider  the  "  place  of  trial " 
as  equally  applicable  to  the  decision  of  issues  of  law  and  of  fact. 
Such  issues,  therefore,  should  be  brought  to  trial  at  a  circuit  court 
or  special  term,  in  the  county  designated  in  the  complaint,  unless 
the  place  of  trial  be  changed  by  order  of  the  court.* 

[Since  the  first  impression  of  the  present  edition,  it  has  been 
held,  in  accordance  with  the  views  of  the  text,  that  the  argu- 
ment of  a  demurrer  is  a  trial,  and  must  be  had  in  the  county  in 
which  the  venue  is  laid.^] 

'  Duer,  633.  amend  is  given  on  the  decision  of  the 

*  10  How.  Pr.  97.     See,  also,  Rey-  demurrer,  such  decision  is  an  order  for 

nolds  V.  Freeman,  4  Sandf.  703.  the   purpose   of    appeal,  though    the 

2  The  general  term  in  the  seventh  demurrer  goes  to  the  entire  pleading. 

district,  in  the  subsequently  reported  It  no  leave  to  amend  is  given,  it  is  a 

cases  of  Bauman  v.  New  York  Central  judgment. 

Railroad  Co.,  10  How.  218,  and  Cook  v.  *  Code,  §  '-26. 

Pomeroy,  10  id.  221,  have    followed  *  Christy  v.  Kiersted,  47  How.  Pr. 

the  rule  in  Drummond  v.  Ilusson,  with  467. 

the  modification,  that  where  leave  to 


796  THE  ISSUE.  [CH.  VIII. 

[*759]  *  SECTION  III. 

EFFECT  OF  THE  PLEADINGS  AND  WHAT  FACTS  DEEMED   ADMITTED   ON 

THE   TRIAL. 

It  was  a  general  rule  under  the  former  practice,  both  at  common 
law  and  in  equity,  that  material  allegations  of  fact  in  a  pleading, 
which  were  not  denied  by  the  plea  or  answer  were,  for  the  pur- 
poses of  a  suit,  deemed  to  be  admitted.  The  pleader  confesses 
the  fact  which  he  does  not  expressly  deny.* 

The  Code  has  ad(ii;ii>d  substantially  the  same  rule  as  respects 
the  complaint  and  the  counter-claim  set  up  by  the  defendant. 
Section  168  reads  as  follows : 

"Every  material  allegation  of  the  complaint,  not  controverted  by 
the  answer,  as  prescribed  in  section  149,  and  every  material  allega- 
tion of  new  matter  in  the  answer  constituting  a  counter-claim,  not 
controverted  by  tlie  reply  as  prescribed  in  section  153,  shall,  for  the 
purposes  of  the  action,  be  taken  as  true.  But  the  allegation  of  new 
matter  in  the  answer  not  relating  to  a  counter-claim,  or  of  new 
matter  in  a  reply,  is  to  be  deemed  controverted  by  the  adverse  party 
as  upon  a  direct  denial  or  avoidance,  as  the  case  may  require." 

The  allegations  of  the  pleadings,  within  the  meaning 
[*T60]  of  this  section,  are  evidently  allegations  of  fact.  *  This 
was  adjudicated  in  a  very  early  case  under  the  Code,  and 
has  not  been  questioned.  Justice  Barcdlo,  in  the  case  referred 
to,'  held  that  the  statute  did  not  extend  so  far  as  to  embrace  aver- 
ments of  the  intention  with  which  a  party  had  executed  a  written 
instrument,'  and,  in  his  opinion  on  this  point,  observes :  "  This 
statute  must  be  confined  to  allegations  oi  fact^  and  cannot  refer  to 
an  averment  of  the  legal  construction,  or  effect,  of  written  instru- 
ments; much  less  can  it  be  applied  to  the  intention  or  mean- 
ing of  parties  when  they  execute  a  written  contract.     To  adopt 

1  8  Wend.  448,  14  id.  507,  8  Paige,  68.  prosecution,  etc. ;  also  in  equity  cases, 

*  Barton  v.  Sackett  and  ethers,  3  How.  as,  for  example,  to  correct  a  nii.stake  in 

Pr.  858, 1  Code  R.  96,  Dutchess  special  a  deed  or  otlier  written  instrument.  In 

special  term,  Dec,  1848.  such  cases  it  becomes  material  to  al- 

^  It  is  evident,  however,  that  there  lege  the  intention,  of  the  party  as  the 

are  a  great  variety  of  cases  in  which  very  fact  to  be  put  in  i.ssue.     Tlie  re- 

the  intention  of  tiie  party  is  the  very  marks  in  tin;  text  are  not  intended  to 

quesiiim  of  fact  upon  which  the  action  apj»ly  to  casus  of  this  description, 
rests,  as  in  cases  of  fraud,  malicious 


SEC   III.]  EFFECT   OF  PLEADINGS.  797 

the  construction  claimed  by  the  defendant's  counsel  would-  be  to 
subvert  not  only  the  rules  of  pleading,  but  the  plainest  princi- 
ples of  justice.  Instead  of  determining  what  the  parties  did,  we 
should  spend  our  time  in  the  vain  attempt  of  endeavoring  to 
ascertain  what  they  intended  to  do."  There  can  be  no  doubt  of 
the  entire  correctness  of  these  views,  and  they  may  be  very  safely- 
applied  to  all  mere  inferences,  conclusions  of  law,  matters  of 
evidence,  etc.,  etc.,  set  up  in  the  pleadings,  and  which,  not  being 
allegations  of  fact  ^  need  not  be  answered.  So,  too,  the 
[*761]  mere  claim  *  of  a  party,  in  his  demand  for  relief,  consti- 
tutes no  portion  of  the  complaint,  and  requires  no  reply, 
because  no  issue  can  be  taken  on  it.' 

Not  only  must  the  allegations  be  allegations  of  fact,  within  the 
meaning  of  the  section  under  consideration,  but  they  must  be 
material  allegations.     It  is  only  every  material  allegation  that  is 
required  to  be  controverted,  or  that  falls  with  the  provision  of 
section  168.'     ITo  allegation  in  a  complaint  or  answer  can  be 
deemed  material,  within  the  meaning  of  the  section,  unless  an  issue 
can  be  taken  upon  it.     Thus,  in  the  cases  above  mentioned,  as  to  the 
intention  of  parties,  and  the  legal  construction  of  written  instru- 
ments, the  prayer  for  relief,  mere  matters  of  evidence,  expressions 
of  opinion,  redundancy  and    irrelevancy,   and   generally   every 
thing  stated  in  the  pleadings  other  than  the  naked  facts  on  which 
the  party's  right  of  action  depends,  or  which  he  must  prove  to 
establish  his  counter-claim.'     Every  matter  which  must  or  which 
may  be  alleged  in  the  complaint,  or  the  counter-claim,  in  order 
to  protect  it  from  demurrer  for  insufficiency,  must  also  be  traversed 
if  the  party  pleading  intend  to  controvert  it  on  the  trial.     Every 
thing  else  may  be  considered  immaterial  within  the  meaning  of 
this  section,  and  an  omission  to  answer  it  will  not  be  a 
[*T62]  confession  of  *  its  truth."     Indeed,  the  court  seem  to  have 
gone  farther  than  this,  and  to  hold  the  doctrine  that  aver- 
ments properly  in  the  pleadings  are  not  to  be  deemed  admitted 
on  the  trial  for  want  of  an  answer,  unless  they  are  such  as  on  an 
issue  taken  upon  them,  whether  of  law  or  fact,  will  decide  the 
ease,  so  far  as  it  relates  to  the  particular  cause  of  action  to  which  it 
>  Averill  v.  Taylor,  5  How.  Pr.  476,        *  Harlow   v.  Hamilton   6  How   Pr. 
and  cases  cited,  ante,  pp.  863,  369.  475  ;  and  see,  also,  6  Barb.  b.  L.  145,  7 

«  6  Barb.  S.  C.  145,  6  How.  Pr.  475.      L.  O.  340. 
^IsJiam  V.  Williamson,!  Leg.  Obs.  840. 


798  THE  ISSUE.  [CH.  Vflf. 

refers.  This  was  held  in  the  superior  court  of  Kew  York,  with  the 
concurrence  of  all  the  justices,  in  the  case  of  Newinan  v.  OttoJ' 
In  reference  to  the  word  "  material,"  as  used  in  section  168,  the 
court  remarks,  that  as  the  Code  has  not  defined  its  meaning,  it 
must  of  course  be  understood  in  its  old  and  established  sense ; 
and,  therefore,  that  no  allegation  can  be  deemed  material  unless 
an  issue  taken  upon  it  will  decide  the  cause  so  far  as  relates  to  the 
'particular  cause  of  action  to  which  the  allegation  refers.  Facts 
pleaded  in  mitigation  of  damages  in  an  action  for  libel  were  held 
not  to  be  material  within  this  definition.  So,  too,  matter  in  aggra- 
vation of  damages  when  properly  set  forth  in  the  complaint.  An 
omission  to  deny  such  matter,  is  not  tantamount  to  a  confession 
thereof  on  the  trial,  but  in  all  cases  the  party  pleading  it  will  be 
put  to  his  proof. 

[In  an  action  sounding  in  damages,  the  defendant,  by  not  deny- 
ing the  allegations  as  to  damages  and  as  to  their  amount,  does 
not  admit  them.  The  plaiutifl"  must  prove  the  amount  thereof 
or  he  will  only  be  entitled  to  nominal  damages ;  *  so  in  trover  a 
failure  to  deny  the  allegations  as  to  the  value  of  the  property  does 
not  admit  the  value  as  alleged  in  the  complaint.'] 

In  an  action  for  the  conversion  of  personal  property,  an  answer 
which  denies  each  and  every  allegation  in  the  complaint, 
[*7C3]  is  a  denial  not  only  of  the  *  conversion,  but  of  the  plain- 
tiff's title  ;  and  under  it  the  plaintiff's  property  must  be 
proved,  or  may  be  disproved  by  the  defendant.'*  In  Ghurcldll  v. 
Bennett^  the  question  of  the  effect  of  the  pleadings  is  considered 
in  an  action  by  a  judgment  creditor  to  set  aside  an  assignment 
made  to  defraud  creditors.  The  complaint  alleged  that  the 
assignor,  ever  since  the  assignment,  had  had  actual  possession  of  the 
property,  and  there  had  been  no  actual  and  continued  change  of 
possession.  The  answer  set  forth  that  the  assignees  took  posses- 
sion immediately  after  the  execution  of  the  assignment,  and  denied 
that  the  assignor  had,  since  the  assignment,  managed  and  con- 
trolled the  property,  accompanied  with  a  general  denial  that  the 
assignment  was  fraudulent,  and  an  averment  that  the  assigned 

M  Sandf.    668.      And    approved  in        ^  Connaf*  v.  Jf^zr,  3  E.  D.  Smith,  314  ; 

Fry  V.  Bennett.  5  id.  64.  McKe.v.ne  v.  Farrell,  4  Boa.  202. 

"■  N em  York  Dry  Dock  Co.  V.  Mcintosh,        *  Rohlnson  v.   Front,  14  Barb.  536 

5  Hill,  2l!0  ;    Van  Eensselaef-i  Ex'rs  v.  Wooflmi}' \.  Cook.  20  id.  505. 
Gallup,  5  Den.  454.  '  8  How.  Pr.  309. 


SEC.  III.]  EFFECT   OF   PLEADINGS.  799 

propertj  was  hona  fide  surrendered  into  the  possession  of  the 
assignees,  where  "  the  same  lias  since  remained  as  hereinbefore 
specified"  This  was  held  an  insufficient  denial  of  the  material 
fact  that  there  had  not  been  an  actual  and  continued  chano-e  of 
possession,  and  on  a  motion  to  dissolve  an  injunction  that  fact  waa 
regarded  as  admitted  by  the  pleadings  and  the  motion  accordingly 
denied.  In  Yanderhilt  v.  The  Accessory  Transit  Company^^  an 
allegation  that  a  certain  account  for  coal,  etc.,  sold  and  delivered 

had  been  liquidated  at  a  certain  sura,  of  which  a  portion 
[*764J  ^(stated  in  the  complaint)  was  alleged  to  be  due  and  unpaid, 

not  being  met  by  a  direct  and  positive  answer  or  denial, 
the  court  allowed  an  amendment  of  the  answer  on  terms. 

Every  affirmative  material  fact  not  put  in  issue  by  a  general  or 
specific  denial,  is  to  be  deemed  admitted  for  all  the  purposes  of 
the  action,  and  cannot  be  contradicted  or  varied  by  evidence  on 
behalf  of  the  opposite  party;  for  a  judgment,  contrary  to  an 
admission  in  the  pleadings  showing  there  ought  to  be  no  judgment, 
would  be  erroneous."  But  a  defendant  who  does  not  answer  is  not 
to  be  taken  as  admitting  any  thing  contained  in  an  answer  of  a 
co-defendant  in  which  he  has  not  participated.'  Nor,  where  ^here 
is  a  general  denial  of  the  complaint,  can  a  second  answer,  which 
admits  a  materiel  allegation  in  the  complaint  for  the  purpose  of 
setting  up  matter  in  avoidance  thereto,  be  used  by  the  plaintiff  as 
an  admission  in  the  cause.  Were  this  so,  as  is  well  remarked  by 
Justice  Hand,  in  Trorj  da  Rutland  Railroad  Co  v.  Iloioe*  every 
good  answer  of  new  matter,  notwithstanding  a  general  denial, 
would  be  an  admission  of  the  complaint  generally,  and  would 
change  the  onus  to  the  defendant. 

"Where  a  defendant  makes  an  admission  in  his  sworn 
[*765]  answer,  that  admission  may  be  taken  most   *  strongly 

against  him  on  the  trial ;  and  he  will  not  be  permitted 
to  retract  such  admission  and  amend  on  the  trial,  unless  on  very 
clear  proof  that  he  has  been  misled  or  deceived.'  A  defendant 
who,  by  his  answer,  merely  says  that  an  agreement  set  forth  in  a 
complaint  is  "  incorrectly  stated,"  and  then  proceeds  to  controvert 

'  9  How.  Pr.  352.  ■*  17  Barb.  599  ;  and  see  also  Rttckum 

«  Bridge  v.   Paj/son,  5  Sandf.   217;  v.  Zerega,  1  Smith's  Coin.  PI.  553. 

Hackett  V.  Richmdn,  11  Leg.  Obs.  315  '  Millar  v.  Moore-.   1   Smith's   Com. 

^Woodworthv. Bellows, '\:^'^ovf.Vr.U  PI  74(J. 


800  THE   ISSUE.  [CII.  VIII. 

certain  parts  of  it,  will  be  lield  to  have  admitted  all  the  agreement 
not  thus  specifically  controverted.'  So  where  an  answer  denies 
that  the  defendant  has  broken  the  agreement  set  forth  in  tlie  com- 
plaint, "  further  or  otherwise  than  as  is  hereinafter  stated,"  this 
throws  the  burden  of  proof  on  the  defendant ;  and  in  default  of 
his  proving  sucli  facts  as  he  has  alleged,  qualifying  or  discharging 
his  obligation,  the  pleading  will  be  regarded  as  an  admission  for 
the  purposes  of  the  trial,  and  the  plaintiff  will  be  relieved  from 
proving  a  breach.'  And,  generally,  the  old  common -law  rule  of 
pleading,  that  matter  of  special  defense  admits  the  allegations  in 
the  declaration,  is  applicable  to  the  Code.  Thus  where,  without 
taking  any  issue,  the  defendant  simply  pleads  set-off,  which  is  not 
proved  at  the  trial,  the  plaintiff  is  entitled  to  judgment  on  the 
pleadings  without  proof,  as  in  case  of  a  default.' 

I  have  thus  considered  the  nature  of  the  allegations  men- 
[*766]  tioned  in  section  168,  and  the  question  of  *  their  materi- 
ality. There  is  another  point  in  this  section  worthy  of 
attention.  The  language  is  peculiar  and  may  be  susceptible  of 
two  meanings.  "  Every  material  allegation  of  the  complaint,  not 
controverted  by  the  answer,  as  jprescrihed  in  section  149,"  etc., 
is  to  be  taken  as  true.  Is  it  deemed  to  be  admitted  only  when 
not  controverted  as  prescribed  by  the  section  referred  to  f  Is  it 
an  entire  failure  to  deny  the  allegation  which  alone  can  have  the 
effect  of  an  admission,  or  will  a  failure  to  deny  in  manner  and 
form^  as  prescribed  by  the  section  referred  to,  have  that  effect  ? 

We  have  seen  ^  that  a  mere  general  denial,  even  under  oath, 
which  violates  this  rule  of  pleading  prescribed  by  the  Code,  as  if 
a  party  should  deny  the  whole  complaint,  instead  of  each  allega- 
tion thereof,  or  deny  changes  collectively,  which  should  be  denied 
disjunctively,  is  defective.  We  have  seen,  also,  the  manner  in 
which  such  a  defective  pleading  may  be  reached  by  motion,  as 
for  judgment  on  a  frivolous  answer,  or  to  strike  out  an  irrelevant 
or  immaterial  issue.  But  will  such  defective  denial  operate  as  an 
admission  of  the  facts  on  the  trial :;     Or,  if  the  4efendant,  instead 

'  Levy  V.  Bend,  1   Smith's  Com.  PI.  or  specific  denial  of  each  material  alle- 

169.  gation  of  the  complaint  controverted 

'  Cotheal  v.  Talmadge,  1  Smith's  Com.  by  the  defendant,  or  of  any  knowledge 

PI.  574.  or   information   thereof    sufflcient    to 

^  Oregory  v.  Trainer,  1  Abb.  Pr.  209.  form  a  belief."     The  language  in  re- 

*  §   149.     "  The    answer  of   the  de-  spect  to  the  reply  is  similar,  55  153. 

fendant  must  contain  :     1.  A  general  *  Ante,  pp.  598,  599. 


SEC.   ni.]  EFFECT   OF   PLEADHSTGS.  801 

of  denying  any  Tcnowledge  or  inforraation  svJjicient  to  form  a 

belief,  as  prescribed  by  the  Code,  should  deny  his  recol- 
[*767]  lection  *  of  the  fact,  or  attempt  to  traverse  it  on  belief 

merely,  is  the  fact  to  be  deemed  admitted  for  the  purposes 
of  the  suit  within  the  meaning  of  section  168?  A  literal  con- 
Btmction  of  the  language,  perhaps,  might  involve  such  a  conclu- 
sion ;  the  words  "  as  prescribed,"  no  doubt,  may  be  construed  to 
mean  "«7i  the  manner  prescribed."  This  indeed  seems  to  have 
been  so  held  at  special  term  in  Doremus  v.  Lewis,  a  case  which 
w^as  subsequently  reversed  at  the  general  term,'  though  upon  a 
different  point  from  that  now  under  consideration.'  On  the 
argument  of  that  case  at  special  term  Justice  "Willaed  held  that 
a  reply  to  the  effect  that  the  plaintiff  had  not  sufficient  knowledge 
to  form  a  belief,  which  did  not  also  "  specifically  controvert "  the 
allegation,  was  insufficient,  and  that  such  reply  admitted  the 
matter  so  attempted  to  be  answered.  At  the  general  term  the 
reply  was  held  sufficient,  and  the  judgment  reversed  without 
considering  the  other  question  as  to  the  effect  of  such  a  reply  as 
an  admission  on  the  trial. 

The  words  "  as  prescribed,"  no  doubt,  refer  to  the  substance 
rather  than  the  mere  manner  or  form  of  flie  denial.     In  the  case 

of  Howell  V.  Fraser,^  it  was  very  properly  said  that  the 
[*T68]  Code  never  intended  *  that  judgment  should  be  given 

against  a  party  who  has  merits  for  a  mere  matter  of  form  ; 
and  it  was  held  that  if  a  pleading  was  correct  in  substance,  though 
not  in  form,  the  remedy  was  not  by  demurrer,  but  by  motion  to 
make  it  more  definite  and  certain,  or  in  some  way  other  than  by 
demurrer.*  A  demurrer,  it  will  be  recollected,  admits  the  facts  ; 
if,  therefore,  the  decision  in  the  case  last  cited  be  correct,  and  a 
plaintiff  is  not  entitled  to  judgment  on  a  mere  defect  in  the  form 
or  manner  of  stating  the  denial  to  his  complaint,  then  such  defect 
will  not  be  considered  on  the  trial  as  an  admission  of  the  facts. 
But  if  the  denial  is  so  defective  as  to  cease  to  be  matter  oi  foi^n 

•  8  Barb.  S.  C.  124.  taken  as  admitted  on  the  trial.      This 

"^  And  such  also  was  the  construction  decision  was  sustained  by  the  general 

in  Wood  V.  Staniels.  in  the  New  York  term  of  that  court  on  appeal. 

common    pleas,   3   Code    R.   152.      A  »  6  How.  Pr.  321. 

traverse  that  the  defendant  "  U  ignor-  *  [fifkkney  v.  Blair,  50  Earb.  340; 

ant  of  whether,"  etc.,  was  held  insuffi-  Wood  v.  Wood,  26  id.  359  ;  SimmoTisv. 

•tient,  and  the  facts  so  traversed  were  Eldridge,  19  Abb.  296.] 

101 


802  THE   ISSUE.  [CH.  YIII. 

merely,  and  is  so  evasive  or  frivolous  as  really  to  amount  to  no 
answer  at  all  as  in  the  cases  above  mentioned,  where  a  denial  is 
general  but  does  not  go  to  each  allegation  of  the  complaint,  or 
where  defendant  denies  recollection  of  a  fact  alleged  in  the  com- 
plaint, etc.,  in  such  cases  it  would  seem  that  the  plaintiff,  if  he 
has  not  raised  the  question  before,  may  insist  upon  the  trial  that 
the  fact  so  evasively  denied,  is  to  be  deemed  admitted ;  and  that 
the  defendant  shall  not  be  allowed  to  introduce  evidence  to  dis- 
prove such  facts. 

In  Ayres  v.  Govill^  it  was  said,  by  Justice  Hand,  that  an 
admission  made  in  the  course  of  a  pleading  is  not  an  admission 

for  all  the  purposes  of  a  cause,  but  only  for  all  purposes 
[*769]  regarding  the  issue  m'ising  on  that  *  pleading.     Thus, 

when  a  defendant,  in  his  answer,  by  certain  admissions, 
supplies  a  defect  in  the  complaint,  on  demurrer  to  the  answer,  the 
defendant  may  go  back  and  attack  the  complaint,  hut  the  admis- 
sion in  the  answer  will  not  help  tlje  defective  complaint.  It  is 
only  an  admission  in  that  line  of  defense  or  pleading.  An  admis- 
sion in  one  defense,  in  an  answer  to  a  complaint  on  a  promissory 
note,  that  the  defendant  indorsed  a  note,  similar  in  amount  and 
description  to  that  mentioned  in  the  complaint,  accompanied  with 
a  denial  of  all  knowledge  or  information  sufficient  to  form  a  belief 
that  he  indorsed  the  same  to  the  plaintiffs,  or  that  the  plaintiffs 
are  the  owners  or  holders  thereof,  "  as  stated  in  the  complaint," 
was  construed,  on  a  motion  for  judgment  on  the  ground  that  the 
answer  is  frivolous,  to  relate  to  the  note  described  in  the  com- 
plaint.' 

The  effect  of  the  answer  of  one  defendant  on  the  rights  of 
another  was  considered  in  Woodworth  v.  Bellows  and  others.^ 
If  the  answer  of  one  defendant  contain  a  proper  case  for  the 
adjudication  of  equities  between  himself  and  a  co-defendant,  but 
contain  no  denial  of  the  complaint,  or  any  defense  material  on 
the  question  of  the  plaintiff's  right  to  recover,  it  will  be  struck 
out,  on  motion,  as  irrelevant,  and,  perhaps,  judgment  might  be 
rendered  as  on  a  frivolous  defense.*     [But  a  defense  which  affects 

'  18  Barb.  260.  •*  [Smart  v.  Bement,  3  Keyes,  241 ; 

^  Williams  et  al.  v.  Richmond.  9  How.     fhrmers'   Loan,  etc.,   v.    Seymour,    9 

623.  PaiiTft,  fi.']!)  ;  Miller  \.  Case,  Clarke's  Ch. 

»  4  How.  Pr.  24.  395''    Stq^hens  v.   Hall,  2   Rol'.   674 ; 

ante,  541,  marg.  p.] 


SEC.  IV.]  PLEADINGS,    HOW   CONSTRUED.  803 

the  plaintiff's  rights  is  proper.']     So  far  as  the  defendant, 

[^770]  *  who  fails  to  answer,  is  concerned,  he  is  not  deemed  as 

admitting  any  thing  alleged  in  an  answer  in  which  he  does 

not  participate.     The  facts  stated  in  the  complaint  as  to  him,  and 

those  facts  alone,  are  to  be  taken  as  true. 

The  effect  of  a  partial  answer  to  a  complaint,  or  an  answer 
extending  to  only  one  distinct  cause  of  action,  \vas  considered  in 
Tracij  and  others  v.  Humphrey.^  In  that  case  the  complaint 
claimed  judgment  on  separate  and  distinct  bills  or  accounts,  and 
an  aggregate  amount  as  a  balance  due  upon  all ;  and  the  answer 
denied  one  bill  only  and  the  balance  claimed,  but  was  silent  as  to 
the  other  two  bills.  The  court  held  the  eifect  of  the  pleadings  to 
be  the  admission  by  defendant  of  the  two  accounts  due,  and,  on 
a  motion  to  strike  out  a  verified  answer  as  false,  suffered  the 
answer  to  stand,  and  ordered  judgment  for  the  plaintiff  on  the 
two  sums  not  denied,  leaving  the  action  to  proceed  in  respect  to 
the  residue. 

And  by  the  Code,  when  the  answer  of  the  defendant  admits 
part  of  the  plaintiff's  claim  to  be  just,  the  court,  on  motion,  may 
order  such  defendant  to  satisfy  that  part  of  the  claim,  leaving  the 
action  to  proceed  as  to  the  residue.' 


[*771]  *  SECTION  IV. 

PLEADINGS,  HOW  TO  BE  CONSTRUED 

The  rules  whereby  to  determine  the  sufficiency  of  the  pleadings 
under  the  Code,  and  the  change  effected  by  the  Code  in  the  for- 
mer rules  of  pleading,  both  at  law  and  in  equity,  were  fully  con- 
sidered in  chapter  1,  section  4,  of  this  work.  It  remains  her'e 
briefly  to  notice  generally  the  rules  of  construction  applicable  to 
pleadings,  so  far  as  the  language  and  terms  employed  are  con- 
cerned, and  how  these  rules  are  effected  by  the  Code. 

It  was  a  general  rule  under  the  old  system,  and  frequently 
recognized  in  our  courts,  that  where  a  pleading  is  equivocal,  and 
two  meanings    present   themselves,   that  construction   shall   be 

>  Stickney  v.  Blair,  50  Barb.  341.  «  Code,  ^  244. 

*  5  ITow.  Pr.  154. 


804  THE    ISSUE.  [CH.  VIII. 

adopted  which  is  most  unfavorable  to  the  party  pleading.'  This, 
however,  was  only  before  answer  to  the  pleading;  for,  after  ver- 
dict, the  equivocal  expression  was  to  be  construed  in  such  a  sense 
as  would  support  the  verdict."  It  was  also  subject  to  certain  other 
rules,  namely,  that  the  language  of  the  pleading  should  have  a 
reasonable  intendment  and  construction ;  *  and  where  an  expres- 
sion was  capable  of  different  meanings,  that  should  be 
[*772]  taken  which  will  support  *  the  declaration,  etc.,  and  not 
the  other,  which  would  defeat  it.*  Thus,  in  an  action  on  a 
bond,  conditioned  that  the  plaintiff  should  enjoy  certain  land,  etc., 
a  plea  that "  after  the  making  of  the  bond,  until  the  day  of  exhibit- 
ing his  bill,  the  plaintiff  did  enjoy,"  without  averring  that  he 
enjoyed  continually,  was  held  to  be  good.  And,  if  a  pleading  can 
be  made  good  by  any  state  of  facts  consistent  with  its  averments, 
it  is  sufficient.^ 

The  rule,  as  applied  under  the  decisions  of  the  courts,  seems  to 
have  meant  nothing  more  than  that,  if  the  expression  or  term 
used  was  capable  of  different  meanings,  the  court  would  construe 
it  to  support  the  proceedings  in  which  the  particular  term  occurred, 
unless  b}''  doing  so  they  would  be  obliged  to  give  it  a  meaning 
against  which  the  uses,  habits  and  understanding  of  mankind 
would  plainly  revolt.  This  was  the  rule  in  regard  to  actions  for 
words,  either  spoken  or  written,  namely,  that  the  court  is  to 
understand  them  according  to  their  ordinary  acceptation  among 
mankind  ; '  and  the  rule  is  the  same  under  the  Code.'  If,  how- 
ever, the  expression  or  term  was  clearly  capable  of  two  diflerent 
meanings,  the  pleading  was  to  be  liberally  construed,  and  that 
construction  was  adopted  which  would  render  the 
[*7T3]  "^pleading  consistent  with  itself.  If  the  sense  was  ambig- 
uous, it  might  be  helped  by  the  context  or  other  means ; 
as  if  words  of  reference,  such  as,  "  there  "  and  "  said  "  were  used, 
they  would  not  be  referred  to  the  last  antecedent,  where  the  sense 
required  that  they  should  be  referred  to  some  prior  antecedent.' 

1  1  Chit.  PI.  237,  1  Hill,  71,  3  id.  *  13  Johns.  483  •  Allen  v.  Patterson, 

475  ;  [Butts  v.  Rosekrans,  23  How.  98,  7  N.  Y.  480. 

34  id.  626,  Beach  v.  Bay  State  Go.,  10  ^  Utica  Ins.  Co.  v.  Scott,  8  Cow.  809. 

Abb.  71, 30  Barb.  433.]  «  5  Johns.  584 ;  3  Caines,  76  ;  5  East, 

5  2  Johns.  387, 15  East,  614.  646. 

»  0  East,   244,  12  id.  270  [Allen   v.  •"  6  How.  Pr.  99  ;  0  id.  171  [Olcott  v. 

Patterson,  7  N.  Y,  480 ;  Olcott  v  Car-  Carroll,  39  N.  Y.  436.] 

roll,  39  id.  436.]  « 1  Chit.  PI.  237,  238. 


SEO.  IV.]  PLEADINGS,    HOW   CONSTKUED.  805 

These  rules  for  the  construction  of  pleadings  were  liberal  and 
proper,  and  went  far  toward  relieving  the  proceedings  of  much 
of  their  formality.  The  Code  seems  to  have  substantially  re- 
enacted  them  in  section  159,  as  follows : 

"  In  the  construction  of  a  pleading  for  the  purpose  of  determin- 
ing its  effect,  its  allegations  shall  be  liberally  construed,  with  a  view 
to  substantial  justice  between  the  parties." ' 

I  do  not  understand  that  this  section  refers  to  any  thing  further 
than  the  mere  construction  of  the  language  and  terms  used  in  the 
pleading.  It  is  in  the  construction  of  a  pleading /br  the  jpurpose 
of  determining  its  legal  effect  /  and  is  not  one  of  those  rules  of 
construction  whereby  to  determine  the  sufficiency  of  the  plead- 
ings, either  as  to  tlie  statement  of  facts  which  go  to  constitute  the 
cause  of  action,  or  the  denial  and  statement  of  defense  in  the 
answer.  Though  in  Lewis  v.  Kendall^  it  was  intimated  that  the 
section  might  be  applied  to  a  defective  pleading  which  violated 
the  rules  of  the  Code  in  these  respects,  yet  the  spirit  of 
[*T74]  the  decision  is  *  manifestly  the  other  way ;  and  the  court 
in  that  case  remarks :  ''  I  am  satisfied  the  courts  will  have 
to  enforce  these  rules  with  some  vigor,  or  the  present  system  of 
pleadings  will  never  answer  the  purposes  for  which  it  was 
intended." 

It  will  not  do,  therefore,  for  a  party  who  has  failed  in  alleging 
a  good  cause  of  action,  or  a  sufficient  defense,  to  endeavor  to 
escape  the  consequences  of  bad  pleading  by  throwing  himself 
upon  the  liheral  construction^  authorized  by  section  159.  The 
cc'irt  is  not  authorized  to  construe  a  material  allegation  into  a 
complaint  which  contains  no  such  allegation,  as  for  example,  the 
consideration  of  a  contract,  or  a  demand  of  personal  property, 
when  such  consideration  or  demand  is  necessary  to  be  proved  in 
order  to  entitle  the  plaintiff  to  recover.  Nor,  as  in  the  case  of 
Lewis  V.  Kendall^  supra,  can  this  section  avail  to  make  a  hypo- 
thetical pleading  good,  or  one  which  violates  the  general  rules  of 
pleading  prescribed  by  the  Code. 

[f  this  view  is  correct,  it  follows,  that  although  the  section  in 
question  may  be  in  some  sense  a  rule  to  determine  the  sufficiency 
of  the  pleadings,  yet  it  applies  merely  to  the  construction  of  the 

'  See  Olcott  v.  Carroll.  ;;y  N.  V.  VH).        '  D  How.  Pr.  O.'j. 


806  THE  ISSUE.  [CH.  Till. 

language  and  the  terms  used,  and  has  no  reference  to  the  question 
of  the  sufficiency  of  the  facts  or  matters  of  substance  pleaded. 
It  is  to  be  applied,  as  was  the  rule  of  construction  under  the  old 
system,  mainly  where  words  are  equivocal,  and  terms  and  expres- 
sions are  capable  of  different  meanings.  And  such  seems 
[*775]  to  have  been  the  construction  put  upon  the  *  section,  as 
in  the  case  referred  to  by  Justice  Harris,  in  Taylor  v. 
Corbiere^  in  which  it  is  held  that  under  the  liberality  of  construc- 
tion which  this  section  enjoins,  the  words  "  legal  holder,"  in  an 
action  on  a  note,  are  to  be  regarded  as  a  sufiicient  allegation  of 
ownership,  which  the  defendant,  if  he  chooses,  may  traverse  or 
deny.  So,  in  the  case  of  Allen  v.  Patterson^  in  the  court  of 
appeals,  the  word  "  due,"  in  an  action  for  goods  sold  and  delivered, 
was  held,  under  this  rule  of  construction,  to  express  the  fact  that 
the  money  sought  to  be  recovered  had  become  payable,  or  the 
time  when  it  was  promised  to  be  paid  had  elapsed.  Though  it 
was  admitted  that  the  word  was  sometimes  used  in  another  sig 
niiication,  and  to  express  the  mere  fact  of  indebtedness,  yet  tlu 
court  held  it  was  not  required  to  apply  the  common-law  maxim, 
that  if  the  meaning  of  words  be  equivocal,  and  two  meanings 
present  themselves,  that  construction  shall  be  adopted  which  is 
most  unfavorable  to  the  party  pleading ;  but  on  the  conti-ary, 
under  the  rule  of  construction  authorized  in  this  section  of  the 
Code,  the  court  was  authorized  and  required  to  consider  the 
meaning  inteiided  by  the  pleader,  and  the  sense  in  which  he  used 
the  term.  "  The  rule  that  once  prevailed,"  says  Justice  Gridlet, 
in  Richards  v.  Edick^  "  that  a  pleading  should  be  construed 
most  strongly  against  the  pleader,  is  now  abrogated  by  the  Code 
(section  159),  which  ordains  that  the  allegations  of  the 
[*776]  *  pleader  shall  be  liberally  construed^  with  a  view  to  sub- 
stantial justice  between  the  parties." 
In  all  these  cases,  the  construction  is  to  be  liberal^  for  the  pur- 
pose of  determining  the  effect  of  the  allegation  and  with  a  view 
to  substantial  justice  between  the  parties.  It  should  be  as  liberal 
certainly  as  under  the  old  practice;  more  so,  it  could  scarcely  well 
be;  for,  as  we  have  seen,  in  the  case  of  an  ambiguous  expression, 
the  court  would  a(lo])t  the  meaning  most  favorable  to  the  pleader 

'  8  How.  Pr.  385.  «  17  Barb.  270. 

»  3  Seld.  476 ;  \OUott  v.  Carroll,  39  N.  T.  43G.J 


SEC.  IV.]  PLEADINGS,    HOW   CONSTRUED.  807 

when  necessary  to  sustain  his  pleading,  if  it  could  be  done  with- 
out violence  to  the  clear  and  palpable  meaning  of  the  term  or 
expression  in  its  common  acceptation.  Perhaps,  under  the  Code, 
cases  might  arise  where  a  liberal  construction,  v^iih  a  view  to 
substantial  justice,  would  authorize  the  court  to  go  urther  and 
adopt  a  construction  in  aid  of  a  doubtful  pleadmg  winch  would 
do  violence  to  the  common  acceptation  of  the  term,  but,  this  being 
a  matter  entirely  discretionary,  it  will  be  unnecessary  to  speculate 

""^The  Vonltmction  is  to  be  liberal,  for  the  purpose  of  d^termhvlng 
Us  efect.    I  understand  this  to  mean  its  effect  generally  as  a  plead- 
inc  in  the  cause,  in  whatever  way  the  question  is  raised ;  and  not 
merely  its  effect  as  an  admission  on  the  trial  under  section  168. 
No  doubt  cases  will  occur  where,  in  the  construction  oi  the  Ian- 
guage  of  a  pleading  for  the  purpose  of  determmmg  its  eti  c  ,  a 
fess  rigorous  rule  of  construction  maybe  -thorized^-^^  ^^^^ 
section  than  under  the  former  practice.     Thus,  when  a 
PTTYl  pleader  formerly  undertook  to  assign  a  breach,  not    accord 
^  ing  to  its  letter,  but  coming  within  the  substance  or  effect 

of  the  covenant,  he  was  held  to  a  more  strict  rule  than  when  he 
ollted  negati;ely  or  affirmatively  the  words  of  the  covenan  / 
A  mire  technical  defect  in  this  particular  will  now  undoubtedly 
be  remedied  under  this  section,  and,  if  the  breach  assigned  be  sub- 
stantially sufficient,  it  will  be  good.     And  -  -  o^.^^  ^^^ 

The  effect  of  the  pleading,  too,  as  an  admission  m  the  can  o 
under  section  168,  may  also  sometimes  properly  be  assisted  by 
^s  L'om  If  he  defect  is  merely  formal,  and  the  dema  is  not 
"!nmanner"..^....W5..''b^ 

as  a  denial,  and  the  opposite  party  have  -S^-^^^  j^  ^^oit 
nnestion  in  some  other  way,  a  ^^6.m^  construct^on  would  authonze 
the  court  to  give  it  the  effect  of  a  traverse  on  the  trial. 

.  .  r.^.^  i.d  '  Stickney  v.  fair^J^   Barb.  340 ; 

» 4  HiU,  154.  ^^^^  ^   YTood,  2G  id.  3o9. 


808  THE  ISSUE.  [CII.   VITI. 

SECTION  V. 

SPECIAL  ETILES  APPLICABLE  TO  PLEADINGS. 

In  the  preceding  chapters  relative  to  the  complaint,  the  answer, 
the  reply  and  the  demurrer,  respectively,  the  principal  general 

rules  applicable  to  and  which,  under  the  Code,  determine 
[*T78]  the  sufficiency  *of  these  several  pleadings,  have  been 

considered,  and  it  remains  in  this  place  briefly  to  notice 
some  special  rules  provided  by  the  Code  or  retained  from  the  old 
system,  applicable  mainly  to  the  form  of  the  pleadings,  and,  first : 

"  Every  pleading  in  a  court  of  record  must  be  subscribed  by  the 
party  or  his  attorney,  and  when  any  pleading  is  verified,  every  sub- 
sequent pleading,  except  a  demurrer,  must  be  verified  also." ' 

The  subject  of  the  verification  of  the  pleadings  has  already 
been  considered  in  the  preceding  chapters  on  the  complaint, 
answer  and  reply.  In  respect  to  the  rule  laid  down  in  the  above 
section  of  the  Code,  that  every  pleading  must  be  subscribed  by 
the  party  or  his  attorney,  it  is  to  be  observed  that  a  failure  to 
comply  with  the  rule  would  be  an  irregularity  which  would  ren- 
der the  pleading  liable  to  be  set  aside  on  motion,  precisely  the 
same  as  a  defect  in  the  title  of  the  complaint,  or  a  failure  to 
demand  the  relief  to  which  the  plaintilf  supposes  himself  entitled, 
as  to  which  see  ante,  chapter  4,  sections  1  and  3.  Such  a  defect  is 
not  a  matter  of  substance,  and  would  not,  therefore,  be  the  sub- 
ject of  demurrer.  Nor  would  it  be  correct  practice,  it  is  con- 
ceived, to  treat  the  pleading  as  a  nullity  and  enter  judgment,^  at 
least  not  until  the  pleading  had  been  returned  or  notice  of  the 
defect  given  to  the  opposite  party.  It  has  been  held, 
[*779]  however,  that  a  subscription  to  the  affidavit  ^verification 
alone  was  a  sufficient  subscription  of  the  pleading  within 
the  meaning  of  the  Code.^ 

The  rules  of  the  court  provide  that  every  pleading  exceeding 
two  folios  in  length  must  have  the  folios  distinctly  numbered  and 

'  Code,  §  156.     [This  section  must  be  improper  practices  of  an  attorney  who 

read  in  connection  with  section  128  (as  had  been  stricken  from  the  rolls,  per- 

amended  in    1870),  which  requires  a  sisting  in  suing  in  person.] 

summons  to  be  subscribed  by  an  attor-  ■'  As  was  done  in  Huhhel  v.  Livings 

ney.     This    amendment    was  said   to  ton,  1  Code,  63. 

have  been  made  inconsequence  of  the  ^  Ilubbel  v.  Livingston,  1  Code,  03. 


SEC.  v.]  SPECIAL   RULES   TO   PLEADINGS.  809 

marked  in  tlie  margin  thereof;  and  the  pleadings  and  other  pro- 
ceedings must  be  fairly  and  legibly  written.'  This  is  similar  to 
the  former  rule  in  regard  to  equity  pleadings.  If  not  so  writ- 
ten, the  clerk  is  prohibited  from  filing  them.  [The  party  upon 
whom  papers  are  served  which  do  not  conform  to  the  requirements 
of  the  rule,  waives  the  objection  unless  they  are  returned  within 
twenty-four  hours  with  a  statement  of  the  particular  objection. 
In  a  flagrant  case  the  want  of  legibility  might  be  treated  as  an 
irregularity  which  the  court  would  correct  on  motion."]  The 
motion  is  strictly  technical,  and  though,  perhaps,  a  party  has  a 
right  to  have  the  pleading  of  his  adversary  conform  to  the  rule 
in  this  particular,  yet  he  must  in  all  respects  be  technically  cor- 
rect himself  and  move  at  the  earliest  opportunity.  In  one  case* 
a  motion  to  set  aside  the  complaint  on  this  ground  was  denied, 
the  affidavit  on  which  the  motion  was  made  being  liable  to  the 
same  objection  and  there  having  been  laches  in  making  the  motion. 
In  that  case  the  court  observed,  that  so  far  as  the  objection  as  to 
numbering  the  folios  was  concerned,  the  pleading  should  have 
been  returned,  and  the  defect  pointed  out ;  and  this,  on  the  whole, 
seems  to  be  the  only  safe  mode  in  which  a  party  can  enforce 

a  strict  observance  of  the  rule. 
[*T80]       *  The  rules  also  require  that  several  defenses  should  be 

not  only  separately  stated  but  plainly  numbered.*  The 
object  of  this  rule  is  thought,  by  Justice  Cady,  to  be  to  render 
the  pleading  definite  and  certain ;  and  for  a  violation  of  it  the 
remedy  of  the  opposite  party  is  by  motion  to  correct  the  pleading 
under  section  160,  and  not  by  motion  to  set  aside  the  pleading  for 
irregularity.* 

The  items  of  an  account  are  not  necessary  to  be  set  foith  in  a 
pleading  under  the  Code.*  But  the  Code  provides  that  a  party 
pleading  an  account  shall  deliver  within  ten  days  after  demand  a 
copy  of  the  account.  The  answer,  however,  must  be  to  the  plead- 
ing itself,  and  not  to  the  bill  of  particulars.  An  answer  avowedly 
to  the  bill  of  particulars,  and  not  to  the  complaint,  was  held  to  be 

1  Supreme  Court  Rules,  26.  •*  Supreme  Court  Rules  25. 

2  Henry  v.  Bow,  20  How.  215  ;  Banes        ^  Wood  v.  Anthony.  9  How.  Pr.  «8 
V.  Jones,  8  Dowl.  &  Ryl.  114  ;  Johnson    [ante,  344,  marg.  p.] 

V.  Casey,  3  Rob.  710,  28  How.  492.  '  Code,  >?  lo8. 

5  Saioner  v.    Schoonmaker,  8   How. 
Pr.  198. 

102 


810  THE  ISSUE.  [CH.  Yill, 

insufficient  and  liable  to  demurrer.'  An  answer  alleging  a  set- 
off in  a  sum  of  money  equal  to  the  sum  claimed  by  the 
[*781]  plaintiff,  "  as  will  appear  by  the  account  current  rendered* 
by  the  defendant  as  stated  in  the  complaint,"  is  indelinite 
and  uncertain.  On  an  order  to  make  such  an  answer  more 
definite  and  certain  by  amendment,  the  defendant  stated  his  set- 
off to  be  generally  for  work  and  labor,  merchandise,  etc.  Held 
no  compliance  with  the  order,  and  the  ansvv'er  struck  out  with 
costs.^  And  see  further  as  to  the  manner  of  pleading  an  account 
on  the  part  of  the  plaintiff*,  ante,  page  266  (marginal  paging),  and 
on  the  part  of  the  defendant,  ante,  pages  580-589  (marginal 
paging). 

We  have  already  considered  the  rules  provided  by  the  Code  in 
pleading,  in  certain  special  cases,  such  as  a  judgment  or  deter- 
mination of  a  court  or  officer  of  special  jurisdiction;'  the  per- 
formanea  of  conditions  precedent  in  a  contract,  and  a  written 
instrument  for  the  payment  of  money ; "  a  private  statute ;  *  in 
cases  of  libel  and  slander ;  °  and  in  an  action  to  recover  property 
distrained  doing  damage.''  It  will  only  be  necessary  here  to  refer 
to  what  was  said  on  these  subjects,  respectively,  in  the  preceding' 
pages.  These  rules  are  of  general  application,  and,  of  course, 
abolish  whatever  in  the  old  system  conflicted  with  them.  They 
may  properly  be  classed  here  as  special  rules  of  pleading,  because, 
unlike  those  broader  principles  elsewhere  enunciated  and  laid 
down  in  the  Code,  tliey  relate  rather  to  the  form  and  manner 
than  to  the  substance  of  the  pleading.  They  are,  also,  it 
[*782]  will  be  observed,  in  *  the  main  permissive,  rather  than 
obligatory;  leaving  it  optional  with  the  party  to  plead  the 
facts  in  the  manner  indicated  in  these  sections,  or  to  adopt  the 
stricter  rules  of  pleading.  Thus,  in  an  action  or  defense  on  a 
written  instrument  for  the  payment  of  money  only,  "  it  shall  he 
aujjicient  for  the  party  to  give  a  copy  of  the  instrument,"  etc.  Or 
he  may  state  it  in  his  conij)laint  in  the  usual  form  of  stating  a 
cause  of  action.  So  in  pleading  a  private  statute,  it  is  sufficient 
to  refer  to  such  statute,  by  its  title  and  the  day  of  its  passage ; 

>  ficomll  V.  Howell,  2  Code,  '.V^.  *  ^  163.  ante,  pp.  270, 496,  marff.  p. 

«  Wiggins  v.  Oau.i,  8  Saudf.  788.  «  g^  164,  165,  ante,  pp.  271-274,  48'^ 

*  i;  161,  ante,  pp.  270,  496,  marg.  p.  496,  marg.  p. 

*  §  163,  ante,  pp.  226-235,  marg.  p.  ''  %  166,  ante,  p.  497,  marg.  p. 


SEC.  T.]  SPECIAL   RULES   TO   PLEADINGS.  811 

but  if  the  party  choose  to  plead  it  in  the  old  form  and  manner 
he  may,  doubtless,  do  so  without  incurring  the  hazard  of  a  motion 
to  strike  out  the  matter  as  redundant. 

There  are  also  a  variety  of  other  special  rules  relative  to  plead- 
ings, so  far  as  the  form  and  manner  of  statement  are  concerned, 
which,  though  properly  belonging  to  the  old  system,  are  not  inap- 
plicable to  the  new.  Many  of  these  we  have  incidentally  noticed 
in  various  parts  of  this  work,  and  do  not  intend  to  refer  to  them 
again  in  this  place.  One  or  two  others,  however,  may  be  briefly 
noticed  here. 

Thus,  under  the  present  system,  as  under  the  fonner,  every 
answer  to  be  good  must  either  traverse  or  deny  the  facts  of  the 
previous  pleading,  or  it  must  confess  and  avoid  them.     Under  the 
former  system  a  pleading    in  confession  and    avoidance    must 
^^We color;  that  is,  it  must  confess  the  matter  adversely  alleged, 
either  expressly  or  impliedly,  to  such  an  extent,  at  least,  as  to  admit 
some  apparent  right  in  the  opposite  party,  which  requires  to 
r*783]  be  encountered  *  and  avoided  by  the  allegation  of  the  new 
matter.'     It  was  not  required,  however,  to  be  an  absolute 
confession,  but  might  be  suh  modo  merely,  so  far  as  to  admit  some 
sort  of  apparent  right  or  color  for  the  action ;  as  in  an  action  for 
trespass  for  taking  sheep,  the  defendant  may  plead  that  a  third 
person  was  possessed  of  them,  and  sold  them  to  him  in  market 
overt,  for  though  this  does  not  admit  the  sheep  to  have  been  the 
j)laint>ff's  when  the  defendant  took  them,  as  alleged  in  the  decla- 
ration, yet  it  admits  them  to  have  been  his,  subject  to  the  effect 
of  the  sale  in  market  overt,  and  therefore  gives  some  color  to  the 
plaintiff 's  claim.'     This  principle  of  giving  color  to  the  plaintiff's 
claim  may  be  applied  to  confession  and  avoidance  in  an  answer 
under  the  Code.     Such  an  answer  to  be  good  must  admit  an 
apparent  ovprim,a  facie  right  of  action  independent  of  the  mat- 
ter disclosed  in  the  plea  to  destroy  it.     And  it  has  so  been  held 
under  the  Code.'     "  The  principles  of  pleading,"  says  the  justice 

1  rsteph  PI  201 :  1  Chit.  PI.  527 ;  1  will  find  the  subject  fully  treated  by 

Hill  26bP;  6  id".  311     Conger  v.  Johnson  Mr  C^-^^^  f  .^l^^'^^.^^oij^PgS'S 

2  Den.  96  ;  MargeMs  v.  Bays,  4  Ad.  &  vol.  5.  pp.  SO^.^^^f.  ^^^'  ^^'  ^^O.  351.J 

Ell  489  ;  Sanders  v.  Coward,  3  Dowl.  &  -  btepli.  fi.  -u^.           _ 

L.  28i;    id.  15  Mees.  &  Welsb.  48;  \Baddmgton  v.  Davis,  6  How.  Pr. 
Higgs  v.  Mortimer,!  Excli.  711  ;  Dor- 


402. 


mail  V.  Long,  2  Barb.  214.     The  reader 


812  THE  ISSUE.  [CII.  VIII. 

wlio  delivered  tlic  opinion  in  the  case  last  cited,  "whatever  the 
system,  are  always  the  same.  Its  office  is  to  present  the  cause 
of  action  on  one  side,  and  a  defense  on  the  other.  This  is  not 
less  true  under  our  present  system  than  it  was  under  the  for- 
mer. Names  are  changed  —  useless  foi*ms  and  technical 
[*784:]  rules  are  abolished  —  but  the  principles  remain  unchanged.* 
What  now  is  a  good  answer,  would  before  have  constituted 
a  good  plea  in  bar."  ' 

[But  this  confession  and  avoidance  is  not  an  admission  of  the 
facts  for  any  purpose  except  that  of  the  particular  plea.*  It  is  a 
good  plea  in  confession  and  avoidance  to  say  ' '  that  the  supposed 
causes  of  action,"  etc.^] 

Again,  at  common  law,  it  was  a  principle  that  every  pleading 
must  be  an  answer  to  the  whole  of  what  is  adversely  alleged.* 
A  ple-ading  professing  to  answer  the  whole,  and  answering  only  a 
part,  is  bad  on  demurrer.^  This  special  rule  of  pleading  has  also 
been  held  applicable  under  the  Code,  and  a  pleading,  commencing 
as  an  answer  to  the  whole  complaint,  and  assuming  to  answer  the 
whole,  but  containing  facts  which  only  constitute  a  defense  to  a 
part  of  the  complaint,  held  bad  on  demurrer.*  But  the  rule  does 
not  apply  to  2^  partial  defense^  when  allowed  to  be  pleaded  by 
the  Code,  such  as  recoupment  or  set-off.  This  subject  has  been 
considered  on  a  former  page.'' 

It  was  also  a  rule  of  pleading  at  law  that  a  traverse  could  not 
be  taken  upon  matter  not  alleged,  with  the  exception,  however, 
that  it  might  be  taken  upon  matter  which,  though  not  expressly 
alleged,  is  necessarily  implied.*  The  effect  of  this  rule,  and  its 
application  to  pleadings  under  the  Code,  have  been  already  briefly 
noticed  in  sections  2  and  3  of  chapter  5.  The  principle  of  a  traverse 
to  an  implied  allegation  is  very  clearly  and  definitely 
[*785]  *recognized  in  Giesson  v.  Giesson*  and  Lord  v.  Cheese- 
horough.^"    Thus,  as  in  the  former  case,  in  an  action  on  a 

'  And   see.  as   to   color,  opinion    of  *  Thumb  v.  Walrath,  6  How.  Pr.  196. 

Selden,  J.,  in  Benedict  v.  Seymour,  G  ■•  Ante,  pages  45i-458,  marg.  p.,  and 

How.  Pr.  305,  806.  cases  there  cited. 

•'  Ayers  v.    Covill,  18  Barb.  260,  264.  »  Stepli.  PI.  192.  193,  2  Salk.  629.  6 

»  EavcHtaff  v.  Russell,  1  N.  Y.  Leg.  Mod.  158. 

Obg.  230.  '  1  Code  R.  N.  S.  414. 

••  Stcpii.  PI.  214,  13  Wend.  78.  '<>  4  Sandf.  606 ;  see  also  Sawyer  v. 

'  1  Chit.  PI.  510,  1    Wend.  347,  23  Warner,  15  13arb.  282. 
id   487. 


SEC.  v.]  SPECIAL   EULES   TO   PLEADINGS.  813 

promissory  note,  an  answer  averring  payment  is  a  proper  traverse  to 
the  fact  that  the  note  is  not  paid,  a  fact  implied  in  the  complaint 
from  the  plaintiff's  possession  of  the  note ;  and,  as  in  the  latter  case, 
the  defendant  in  snch  an  action  has  a  right  to  traverse  the  plaintiff's 
ownership,  or  interest  in  the  note,  though  the  ownership  be  not 
expressly  alleged  in  the  complaint.  The  rule  is  also  very  clearly 
illustrated  in  actions  for  lihel  and  slander,  in  cases  where  malice 
must  be  proved,  but  need  not  be  expressly  alleged.  The  malice 
implied  from  the  tacts  set  forth  in  the  complaint  is  a  material 
allegation,  which  may  be  traversed  or  denied  by  the  defendant's 
answer,  and  thus  an  issue  raised  thereon.'  Many  other  examples 
in  illustration  of  the  principle  might  be  given,  but  the  above  will 
suffice  to  explain  its  general  nature. 

A  good  issue  at  common  law  could  not  be  joined  on  two  ajfir- 
matives  or  two  negatives.  An  example  of  the  first  kind  is,  where 
the  defendant  pleads  that  a  party  died  seized  in  fee,  and  the  plaintiff 
replied  affirmatively  that  he  died  seized  in  tail."  An  instance  of  the 
latter  kind  is,  where  a  plea  states  a  request  to  deliver  an  abstract  of 
title,  and  a  refusal ;  a  replication  that  the  plaintiff  did  not 
[*786]  neglect  and  ^refuse  to  deliver  such  abstract  would  be  insuffi- 
cient ;  he  should  allege  affirmatively  that  he  did  deliver.* 
These  rules,  though  artificial  and  technical,  are  founded  in  good 
sense,  and  though,  perhaps,  not  essential  in  most  cases  to  the  validity 
of  a  pleading  under  the  liberal  system  adopted  by  the  Code,  yet,  it 
would  be  well  in  framing  an  issue  always  to  observe  them.  In 
the  late  case  of  Giesson  v.  Giesson^  the  court  of  appeals  defines 
an  issue  to  be  substantially  the  same  as  it  was  under  the  former 
system,  and  of  course  a  good  traverse  must  be  taken  in  the  same . 
way.  "  An  issue  is  joined,"  as  was  said  in  that  case,  "  when  there 
is  a  direct  affirmation  and  denial  of  the  fact  in  dispute,  and  it 
makes  no  difference  whether  the  affirmative  or  the  negative  is 
first  averred.' '  It  is  not  a  violent  inference,  from  this  language, 
to  say,  that  two  affirmative  propositions,  or  two  negative  proposi- 
tions, cannot  form  such  an  issue.  And,  perhaps,  cases  might  occur 
under  the  Code  in  which  such  an  answer  would  be  held  evasive, 

■  See  on  this  point,  ante,  pages  493-        '  6  East,  556,  557. 
495,  marg.  p.,  and  cases  there  cited.  *  1  Code  R.  N.  S.  414,  13  Barb.  530. 

«  Steph.  PI.  385. 


814  THE  ISSUE.  [CH.  VIII. 

and,  if  not  struck  out  ou  motion,  might  at  least  be  made  more 
definite  and  certain  by  amendment. 

A  similar  defect  in  pleading  is  what  was  called  a  negative  preg- 
nant. This  was  such  a  form  of  denial  as  implied  or  carried  with 
it  an  affirmative,  and  was  susceptible  of  a  double  meaning.  As, 
for  example,  in  an  action  of  trespass,   the  defendant    pleaded 

that  he  entered  the  plaintiff's  house  by  license  given  by 
[*787]  *  plaintiff's  daughter,  and  the  plaintiff  replied  that  he  did 

not  enter  hy  her  license.  This  was  considered  a  negative 
pregnant,  and  it  was  held  that  the  plaintiff  should  have  traversed 
the  entry  by  itself,  or  the  license  by  itself.'  Such  a  pleading  is  said 
to  be  bad  for  amhiguiiy.  While  professing  to  deny  the  license,  it 
implies,  or  carries  with  it,  the  idea  that  the  license  was  given. 
Such  a  defect  in  a  traverse,  under  the  Code,  particularly  where  it 
purports  to  answer  a  verified  pleading,  may  amount  to  a  mere 
evasion,  and  render  the  pleading  defective. 

It  was  also  a  rule  of  pleading,  and  one  which  may,  with  great 
propriety,  be  apphed  to  the  Code,  that  a  traverse  must  he  neither 
too  large  nor  too  narrow.  A  traverse  may  be  too  large,  by  being 
taken  in  the  conjunctive  instead  of  the  disjunctive,  or  by  involv- 
ing in  the  issue,  quantity,  time,  place,  or  other  circumstances, 
which,  though  forming  part  of  the  allegations  traversed,  are 
immaterial  to  the  merits  of  the  cause.  So,  too,  it  may  be  too 
narrow,  by  being  applied  only  to  part  of  a  cause  of  action ;  or, 
of  an  allegation,  which  the  law  considers  as  in  its  nature  indivisi- 
ble.' A  familiar  example  of  the  former  kind  of  traverse  is  found 
in  a  case  M'here  the  defendant  alleged  that  he  had  served  the 
plaintiff  half  a  year  at  D.,  in  the  county  of  K.,  and  the  plaintiff 

replied,  that  he  had  not  served  him  half  a  year  at  D.,  in 
r*78S]  tJie  county  of  K.     This  was  held  bad,  as  involving  *  the 

])lace,  in  the  issue.'  Where  a  plaintiff  alleges  a  series  of 
charges  as  his  cause  of  action,  proof  of  any  one  of  which  will 
entitle  him  to  recover,  and  the  defendant  denies  these  charges 
conjunctively.^  the  traverse  is  too  large,  and  the  answer  will  be 
insufficient.  Tlie  nature  and  extent  of  this  rule,  and  its  applica- 
bility to  pleadings  under  the  Code,  have  been  considered  in 
another  part  of  this  work.*     It  may  be  observed,  however,  in 

'  Steph  PI.  381,  aute,  'm,marg.  p.  »  Steph  PI.  248,  249. 

»  Ste])li.  PI,  248,  249,  *  Ante,  pp.  426-430,  marg.  p. 


SEC.  v.]  SPECIAL   EULES   TO   PLEADINGS.  815 

addition,  that  in  some  cases  where  a  traverse  following  the  exact 
language  of  the  complaint  would  he,  technically  speaking,  too 
broad,  as  involving  time,  place,  or  other  immaterial  matters  in 
the  issue,  the  defect  may  be  merely  a  matter  of  form  in  the  state- 
ment, and  if  liable  to  objection  at  all,  should  not  be  treated  as  an 
al.^solutely  evasive  or  frivolous  pleading.  The  same  may  be  said 
with  respect  to  a  traverse  that  is  too  narrow ;  as,  for  example,  if 
in  a  complaint  for  labor  and  services,  from  January  1st,  1851,  to 
January  1st,  1852,  the  defendant  should  deny  that  the  plain  tiii 
worked  for  the  whole  time  alleged ;  the  defendant  being  entitled 
to  compensation  for  part  of  his  services,  it  is  no  sufficient  answer 
to  say,  that  he  did  not  work  the  full  time ;  but  the  court  would, 
doubtless,  allow  the  defendant  to  correct  his  pleading. 

Most  of  the  other  rules  relative  to  the  mode  and  manner,  as 
well  as  the  form  of  pleading,  which  are  still  in  force  as 
["^^789]  rules  of  logic,  at  all  events,  if  not  *  absolute  rules  "  to 
determine  the  sufficiency "  of  the  pleadings,  have  been 
already  noticed  in  various  parts  of  this  work,  and  the  extent  of 
their  application  under  the  Code  considered.  I  shall  not  attempt 
to  detail  or  classify  them  here,  or  to  pursue  the  investigation 
f irther.  One  or  two  brief  remarks  relative  to  certain  rules  of 
pleading  which  have  become  obsolete,  and  can  have  no  application 
to  the  new  system,  will  close  this  branch  of  the  subject. 

When  an  issue  of  law  was  tendered  on  a  demurrer,  the  oppo- 
site party  was  bound  to  accept  it,  which  he  did  by  putting  in  a 
formal  joinder  in  demurred'.  This  is  now  no  longer  necessary ; 
the  demurrer  itself  raises  the  issue.' 

The  rules  relative  to  pleading  in  all  mere  matters  of  form,  such 

as  time,  place,  etc.,  when  not  material  to  the  issue,  or  necessary 

to  apprise  the  opposite  party  of  the  exact  nature  and  extent  of 

the  claim,  are  no  longer  in  force.     So,  too,  the  rule  that  pleadings 

should  observe  the  known  and  ancient  forms  of  expression  as 

contained  in  approved  precedents.     In  pleading  the  statute  of 

limitations,  the  defendant  alleged  that  he  was  not  cjxiilty  within 

six  years,  instead  of  alleging  that  the  cause  of  action  did  not 

accrue  within  six  years;  and  this  was  held  defective  on  special 

demurrer."     All  these  technical  rules  are,  of  course,  abrogated  by 

the  Code. 

'  Morgan  v.  Leland,  1  Code  R.  123.  »  3  Barn.  &  Aid.  448. 


816  THE  ISSUE.  [CH.  VIII. 

So,  too,  in  respect  to  the  rule  that  a  plea  which  amounted 
[*790]  to  the  general  issue  was  defective,  and  *  liable  to  demur 
rer,  as  in  an  action  on  a  bond,  if  the  defendant,  instead  of 
pleading  the  general  issue  no7i  est  factum^  should  confess  the 
bond,  but  allege  that  it  was  executed  to  a  person  other  than  the 
plaintiff,  this  pleading,  under  the  old  system,  was  held  bad.*  Such 
an  answer,  setting  up,  as  it  does,  the  facts,  would  now,  it  is  pre- 
sumed, be  good,  and  the  above  rule,  if  not  wholly  obsolete,  can 
have  but  a  very  limited  application.' 

There  are  a  variety  of  minor  miscellaneous  rules,  also,  which 
were  peculiarly  adapted  to  the  old  system,  but  have  now  become 
obsolete.  Thus,  the  rules  relative  to  the  entitling  of  pleadings, 
the  formal  commencement  and  conclusion  of  pleadings,  etc.,  etc. 
All  these,  it  is  evident,  can  no  longer  apply  under  the  Code.  It 
was  also  a  general  rule  that  a  plaintiff  claiming  under,  and 
pleading  a  deed  or  other  sealed  instrument,  or  letters  testament- 
ary, or  letters  of  administration,  was  bound  to  make  profert,  as 
it  was  called,  which  was  to  the  effect  that  the  party  "  now  brings 
the  said  indenture  (or  other  instrument)  here  into  court."  If  not 
so  alleged,  the  pleading  was  defective.  This  formality  is  now 
dispensed  with  under  the  Code.  So  held  in  Bright  v.  Ourrie* 
in  an  action  brought  by  an  administrator,  that  profert  of  his 
letters  of  administration  is  not  necessary. 

» 1  Sid.  470.  3  5  Sandf .  433, 10  L.  0. 104 ;  see,  also, 

»  Hollenbech  v.  Clow,  9  How.  289 ;  Welles,  ex'r,  v.  Webster,  9  How.  251. 

and  see  remarks  on  this  subject,  ante,  ■ 

page 


[*79i]  *  CHAPTER  IX. 

OF  AMENDMENTS,  VARIANCES,  AND  MISTAKES  IN  PLEADING. 

The  subject  of  the  amendment  of  pleadings  and  of  variances 
between  the  pleadings  and  proof  on  the  trial,  is  one  of  considera- 
ble importance,  and  requires  a  brief  consideration.  The  subject 
will  be  treated  in  the  following  order : 

1.  Amendments  in  general,  how,  and  when  allowed,  and  on  what  terms. 

2.  Variances  between  pleadings  and  proof. 

3.  Defects  in  pleading,  when  and  how  aided. 

SECTION"  I. 

AMENDMENTS  IN  GENERAL,  HOW,  AND  WHEN  ALLOWED,  AND  ON  WHAT   TERMS. 

At  common  law,  amendments  could  be  made,  at  any 
P792]  time  before  judgment  was  signed,  in  the  discretion  *  of 
the  court.  They  might  be  allowed,  either  of  course, 
without  motion,  upon  motion  after  notice,  or  on  the  argument  of 
motions  made  by  the  adverse  party  for  the  purpose  of  taking 
advantage  of  the  defect.  A  declaration  might  be  amended  of 
course  at  any  time  before  the  defendant  put  in  his  defense.  And 
by  the  rules  of  the  court,  within  a  certain  time  after  defense  put 
in,  or  before  default  for  not  replying,  the  plaintiff  might  amend 
in  certain  cases,  such  as  by  changing  the  venue,  by  increasing  the 
damages  laid  where  there  is  no  bail,  but  not  by  adding  new 
counts,  or  by  inserting  the  name  of  a  party  defendant  who  has 
not  been  served  with  process,  etc.,  etc.  The  defendant  also  might 
amend  of  course  without  costs  on  a  proper  affidavit ;  but  if  he 
wished  to  add  a  new  plea,  or  it  was  necessary  to  amend  a  second 
time,  leave  of  the  court  must  be  obtained.' 

Similar  rules  obtained  in  respect  to  pleading  in  equity.  The 
complainant  might  amend  his  complaint  of  course,  and  tlie 
defendant  his  answer  of  course,  in  certain  cases,  or  after  the  time 
for  answering  had  expired ;  or,  on  a  demurrer  to  the  matter  of 

1  7  Cow.  164,  2  Johns.  Caa.  219,  1  Wend.  71,  1  Burr.  Pr.  176. 
103 


818  AMEl^DMENTS.  [CH.  IX. 

the  whole  bill,  he  might  be  allowed  to  amend  on  motion,  in  the 
discretion  of  the  court/ 

But  amendments  «/if^r  judgment  were  not  allowed  at  common 
law.  The  statutes  of  amendments  and  jeofails  were 
[*793]  designed  to  remedy  this  inconvenience,  *  and  to  authorize 
certain  amendments  to  the  proceedings  after  judgment. 
These  various  statutes  were  re-enacted  with  some  alterations  in 
this  State,  at  an  early  day,  and  were  in  substance  incorporated 
into  the  Revised  Statutes.* 

The  sixth  chapter  of  title  6,  part  2  of  the  Code,  relative  to 
mistakes  in  pleading  and  amendments,  professes  to  prescribe  the 
cases  and  circumstances  in  which  amendments  may  be  made  to 
the  pleadings  and  proceedings,  and  variances  at  the  trial  dis- 
regarded. The  commissioners,  in  their  note  to  this  chapter  (which 
seems  designed  to  supersede  the  former  provisions  of  the  statute) 
say,  that  they  have  provided  a  means  of  amendment  of  the  most 
liberal  character ;  as  liberal,  indeed,  as  they  could  devise.'  I  shall 
consider,  in  this  place,  simply  the  subject  of  amendments  to  the 
pleadings,  leaving  that  of  variances  for  the  following  section. 

The  Code  provides  that  the  pleadings  may  be  corrected  by 
amendment,  as  under  the  former  practice,  in  three  ways  or  classes 
of  cases :  First.  By  the  party  himself,  of  course,  without  applica- 
tion to  the  court.  Second.  By  the  court,  on  application  of  the 
party  desiring  the  amendment.  Third.  By  the  court,  either  at 
the  trial,  on  judgment  rendered,  or  on  motion  of  the  adverse 
party  seeking  to  take  advantage  of  the  defect.     Each  of  these 

will  now  be  considered. 
[*794]       *  1.  Amendment  of  course. —  That  portion  of  the  Code 
which  makes  provision  on  this  subject  is  in  these  words : 

§  172.  Any  pleading  may  be  once  amended  by  the  party  of  course, 
■without  costs,  and  without  prejudice  to  the  proceedings  already  had, 
at  any  time  within  twenty  days  after  it  is  served,  or  at  any  time 
before  the  period  for  answering  it  expires,  or  it  can  be  so  amended 
at  any  time  within  twenty  days  after  the  service  of  the  answer  or 
demurrer  to  such  pleading,  unless  it  be  made  to  appear  to  the  court 
that  it  was  done  for  the  purposes  of  delay,  and  the  plaintiff  or  defend- 
ant will  thereby  lose  the  benefit  of  a  circuit  or  term  for  which  the 
cause  is  or  may  be  noticed,  and  if  it  appear  to  the  court  that  such 

>  1  Barb.  Ch.  Pr.  206  to  225.  »  First  Report  of  Comrs.,  p.  168. 

«  2  R.  S.  424-426,2  Edm.  St.  441-444. 


bEC.  I.]  IN"   GENERAL.  819 

amendment  was  made  for  such  purpose,  the  same  may  be  stricken, 
out,  and  such  terms  imposed  as  to  the  court  may  seem  just.  In  such 
case,  a  copy  of  the  amended  pleading  must  be  served  on  the  adverse 
party.' 

The  remaining  part  of  the  section  relates  to  amendments  after 
judgment  on  demurrer,  which  will  be  considered  in  its  proper 
place. 

The  pleading,  under  this  section,  can  be  amended  at  any  time 
before  it  is  actually  answered,  or  before  the  time  limited  by  law 
.  for  answering  expires.    After  the  service  of  an  answer  or  demurrer, 
the  defendant  has  twenty  days  to  amend  of  course  ;  if  the  plead- 
ing be  served  by  mail,  he  has  forty  days,  and  the  rule  applies 
to  the  case  of  a  reply.'     An  amended  complaint  may  be  served 
of   course   at    any    time,    within    twenty   days  after  an 
[-795]  amended  answer  is  served,  although  more  than  twenty 
days  have  elapsed  from  the  service  of  the  original  answer 
and  replication  thereto.    [The  amended  pleading  takes  the  place  of 
and  supersedes  the  original.'] 

The  practice  has  been  sanctioned  in  one  case  *  of  treating  as  a 
nullity  an  amended  answer  put  in  for  delay  merely  and  at  so  late 
a  period  as  to  throw  the  cause  over  the  circuit.  The  plaintiff,  it 
was  said,  could  disregard  it  and  take  the  defendant's  default,  and 
if  the  amendment  should  prove  to  have  been  interposed  in  good 
faith  the  default  would  be  set  aside.  But  in  another  case '  a  dif- 
ferent rule  was  followed ;  and  it  was  considered  that  the  Code 
does  not  authorize  the  party  to  decide  in  the  first  instance  and 
disregard  the  pleading  at  his  peril,  but  provides  for  a  decision 
upon  the  good  faith  and  propriety  of  the  amended  pleading, 
before  any  other  proceedings  can  be  had  in  the  action  which  may 
affect  the  rights  of  the  parties.  The  right  to  amend,  it  was  said, 
is  absolute,  subject  only  to  the  power  of  the  court  to  strike  out 
for  cause  shown.  This  is  clearly  the  practice."  A  frivolous 
amendment,  therefore,  such  as  would  not  have  been  allowed  by 

'  Code,  §  172.  5  Qriffin  v.  Cohen  et  al..  8  How.  Pr. 

2  Ciissonv.  Wliallon,  5  How.  Pr.  302  ;  451. 

Wanhburn  v.  Herrick,  4  id.  15.  *  [Spencer  v.  Tooker,  21  How.  3.S3, 13 

^[Seneca  County  Bank  v.  Garling-  KWo.'iTiZ;  Fiin'andy.UerheMn,'m)\ieT, 

house,  4  How.  Pr.  174  ;  Fry  v.  Bennett,  658  ;  Burrall  v.  Moore,  5  id.  054  ;  J/b- 

3  Bosw.   200,  233,  and   see   Brown  v.  Q^ieen  y.  Bnheock.  22  Row.  22^,^-3  Ahh. 

Saratoga  Railroad,  18  N.  Y.  495.]  2G8,  41  B.  337.] 

*  Allen  V.  Compton,8llow.  Pr.  251. 


820  AMEl^DMENTS.  [CH.  IX. 

the  former  practice,  will  be  struck  out  on  motion,  especially  if 
tlie  loss  of  a  circuit  will  be  occasioned  by  such  amendment.    But 

the  right  to  amend  is  not  to  "  prejudice  the  proceedings 
[*796]  *  already  had."     Therefore,  if  the  cause  is  at  issue,  the 

plaintiff  has  a  right  to  notice  it  for  trial,  and  may  go  on 
and  try  the  cause  and  perfect  judgment,  and  this  judgment  is  not 
to  be  prejudiced  by  a  subsequent  arriendment^  even  although  it 
should  be  made  within  the  time  prescribed  by  statute.'  The 
plaintiff  has  a  right  to  act  upon  the  pleadings  as  they  are  served,' 
and  is  not  bound  to  wait  before  giving  notice  of  trial  or  refer-' 
ence  to  see  whether  the  pleadings  will  be  amended.  But  he 
proceeds  at  his  peril ;  and  if,  within  the  time  of  amendment  and 
before  the  plaintiff  can  bring  the  issue  to  trial,  the  defendant 
amends,  the  issue  intended  to  be  tried  will  be  destroyed ;  though 
if  judgment  be  obtained  before  the  amendment,  it  will  not  be  set 
aside.'  Though  the  right  to  amend  is  absolute,  yet  it  may  be 
waived,  it  seems,  either  by  express  notice  from  the  party  that  he 
will  not  amend  or  by  noticing  the  cause  for  trial.* 

And  though  the  amendment  may  be  made  under  the  above 
section,  of  course,  and  without  costs,  yet  it  cannot  be  made  -^vhere 
the  party  wishing  to  amend  has  not  been  regular,  and  his  adver- 
sary has  already  taken  steps  for  a  motion  to  the  court,  founded 

on  such  irregularity.  So  held  by  Justice  "Welles  in  Wil- 
[*797]  Hams  v.  Wilkinson^  and  by  Justice  Munson  *  in  Hall  v. 

Huntley*  In  each  of  these  cases  the  complaint  was 
defective  in  not  mentioning  the  name  of  the  county,  and  after 
notice  of  motion  by  defendant  to  set  aside  complaint,  held  that 
the  plaintiff  could  not  amend  without  payment  of  costs  of  motion. 
And  upon  the  same  principle,  it  would  seem,  where  irrelevant 
and  redundant  matter  is  inserted  in  the  pleading,  and  notice  of 
motion  has  been  given  to  correct  the  pleading,  by  striking  out 
such  matter,  or  by  making  it  more  definite  by  amendment,  the 
party  committing  the  error  should  be  held  to  pay  costs  of  the 
motion  before  he  is  allowed  to  amend.     [This  has  been  repeat- 

1  Plvmhv.Wiipples,  7  How.  Pr.  411.  *  Cimon  v.  Wlialen,  5  How.  Pr.  305 

■^  Enos  V.  ThomaK,  4  How.  Pr.  2'JO.  {Phillips  v.  Suydam,  54  Barb.  153,  6 

^  Plumb  V.    Whipples,  7   How.   Pr.  Abb.  N.  S.  289]. 

411 ;  the  case  of  Morgan  v.  Leland,  1  *  5  How.  Pr.  357. 

C!ode   R.  123,   contra,  arose  under   a  «  1  C.  R.  N.  S.  20,  and  note. 

Sf^ction  of  the  Code  of  1848. 


SEC.  T.]  IIT   GENERAL.  821 

edlj  held/  but  the  irregularity  may  be  cured  before  the  motion 
papers  are  served,  although  they  have  been  prepared."  A  party 
may  ameiid,  of  course,  after  a  motion  for  judgment  on  account 
of  the  frivolousness  of  his  pleading.']  The  practice  of  permit- 
ting amendments  to  be  made  in  such  cases  without  costs  must 
necessarily  lead  to  great  looseness  in  pleading.  A  party  might 
willfully  incumber  his  complaint  or  answer  with  matters  of  sur- 
plusage, and  wait  to  see  whether  his  adversary  would  take  the 
objection,  and  point  it  out  to  him  by  way  of  notice  of  motion,  in 
which  case  he  might  amend  without  costs ;  otherwise,  the  defective 
pleading  would  stand.  This  kind  of  experimental  practice  ought 
not  to  be  encouraged. 

The  language  of  the  section  under  consideration  does  not,  in 
terms,  limit  the  right  of  the  party  to  amend,  of  course,  to  any 
particular  kind  of  amendment,    except  only  that    such 
[*798]  amendment  must  not  *  be  for  the  purpose  of  delay,'     In 
practice,  however,  he  has  not  an  unlimited  right  of  amend- 
ment. 

The  section  above  quoted  has  been  held  to  apply  only  to  such 
amendments  as  will  not  create  an  action  between  other  parties 
than  those  who  are  originally  parties  to  the  suit.  Thus,  in  Rus- 
sell V.  Sjpear  and  Butler^  it  was  very  properly  decided  that  a 
plaintiff  could  not  amend  his  complaint,  of  course,  by  striking 
out  the  names  of  parties.  There  is  no  part  of  the  Code,  it  was 
said,  which  permitted  the  plaintiff  to  change  the  parties  in  the 
cause  without  leave  of  the  court,  and  the  practice  under  the  Code 
in  this  respect  was  likened  to  the  former  practice  at  law  and  in 
equity.  [But  the  party  may  amend  as  of  course,  by  setting  up 
a  different  claim.,  cause  of  action  or  defense,"  subject,  of  course,  to 
the  qualification  that  the  complaint  must  conform  to  the  sum- 
mons as  required  by  section  129  of  the  Code.] 
[*799]  *  In  Plumh  v.  Whippiest  it  is  laid  down  that  an  answer 
merely  denying  the  allegations  of  the  coiuplaint  cannot 
be  amended  as  of  course,  and  for  the  reason  that  there  is  no  new 

'  mil  V.  Smith,  3  How.  242 ;  Prud-  «  McQueen  v.  Babcock,  3  Keyea,  428 ; 

ilni  V.  City  of  Lockport,  40  id.  46.  Brown  v.  Leigh,  12    Abb.    N.  S.   193 

-  Stow  V.  Smith,  2  How.  368.  (court  of  appeals),  and  cases  cited  by 

s  Burrall  v.  Moore,  5  Daer,  0o4.  Mr.  Abbott  in  note. 

'  Mason  v.  Whitley,  1  Abb.  Pr.-85.  ^  7  How.  Pr.  411. 
6  How.  Pr.  142,  3  C.  II.  189. 


822  AMEIS^DMENTS.  [CH.  IX. 

matter  in  it  requiring  a  reply.     The  same  reason  would  apply  to 

every  answer  not  containing  a  counter-claim  but  for  tlie  recent 

amendment  allowing  a   demurrer  to  the  ansvrer.      An 

[*800]  answer,  as  well  as  a  *  complaint,  may  now  be  amended  at 

any  time  before  tlie  period  for  demurring  to  it  expire?. 

In  most  cases,  it  seems,  a  party  may  amend,  of  course,  where 
the  same  amendment  would  be  allowed  on  the  trial.'  Amend- 
ments, however,  must  be  confined  to  matter  in  existence  at  the 
commencement  of  the  suit.  An  amended  complaint,  "alleging 
matters  which  occurred  subsequent  to  the  service  of  the  original, 
is  irregular,  and  may  be  set  aside  on  motion,  or  the  new  subsequent 
matter  may  be  struck  out.''  Such  matters  should  be  brought  before 
the  court  by  supplemental  pleading. 

The  amended  pleading  must  be  served  on  the  opposite  party, 
and  he  is  required  to  reply  to  it  as  to  an  original  pleading,  the 
amended  pleading  taking  the  place  thereof;  and  any  pi-evious 
answer  to  the  original  pleading  is  entirely  waived.  But  full  time 
to  answer  is  allowed  from  the  date  of  service  of  the  amended 
pleading.  [An  amended  pleading  must  be  served  on  all  the  par- 
ties to  the  action.'] 

After  issue  joined,  the  cause  noticed  for  trial,  and  the  plaintiif 
examined  as  a  witness  by  the  defendant,  such  defendant  has  no 
right  to  amend  his  answer  of  course,  and  can  do  so  only  on  appli- 
cation to  the  court."  ISTor  can  a  defendant  serve  an  amended 
answer  after  issue  joined,  which  is  identical  in  legal  effect  with 
the  original  answer ;  and  if  so  served,  such  amended  answer  will 

be  struck  out  on  motion.* 
[^801]  *  The  plaintiif,  after  reply  to  an  answer  served  with  a 
demurrer  written  on  the  same  paper,  is  not  bound  to  reply 
again  to  the  same  answer,  served  on  him  as  an  amended  answer, 
with  merely  the  demurrer  omitted.  The  answer  in  such  case  is 
not  amended.*     And  in  case  a  verified  complaint  is  served  as  an 

'  Getty  V.  H.  R.  R.  R.  Co.,  6  How.  Pr.  in  September,  1857.     The  reversal  was 

2(jO.  never  reported.      Tlie  case  of  Pe.opli'. 

•  Uoriifager  v.  Horiifager,  6   IIow.  v.  Woods,  2  Code  R.  18,  was  entirely 

Pr.  13.  [But  see  ante,  607-612,  war.'/,  p.]  overlooked  in  the  case  as  reported,  13 

3  [People  V.  Woodx,  2  C.  R.  18  ;  Fasnet  How.] 

V.  Tnlinadge,  lo  Abb.  206.     The  case  *  Snyder  v.  Wliite,  6  How.  Pr.  321. 

of  Gordon  v.  Sterling,  13   How.  405,  *  Howard  v.  Michigan  B.  R.  Co.^  5 

was  reversed  by  the  general  term  of  How.  Pr.  206. 
the  supreme  court,  in  the  6th  district 


SEC.  I.J  IN   GENERAL.  823 

amendment,  after  answer  to  the  same  complaint  originally 
served,  the  defendant  is  not  bound  to  answer  the  veritied  com- 
plaint, it  not  being  an  amendment,  and  judgment  against  the 
defendant    for  want    of    such    answer    will    be    set    aside  for 

irregularity.' 
[*802]       *  What  amendments  may  he  made  hij  the  court  on  ap- 
plication, and  how  and  on  what  terms  allowed.      The 
Code  makes  provision  for  this  class  of  cases  as  follows : 

"The  court  may,  before  or  after  judgment,  in  furtherance  of  jus- 
tice, and  on  such  terms  as  may  be  proper,  amend  any  pleading,  pro- 
cess or  proceeding,  by  adding  or  striking  out  the  name  of  any  party, 
or  by  correcting  a  mistake  in  the  name  of  a  party,  or  a  mistake 
in  any  other  respect,  or  by  inserting  other  allegations  material 
to  the  case,  or  ^  when  the  amendment  does  not  change  substan- 
tially the  claim  or  defense  by  conforming  the  pleading  or  proceed- 
ing to  the  facts  proved."  ^ 

In  order  to  obtain  a  correct  idea  of  the  extent  of  the  changes 
made  by  the  Code  in  the  practice  of  allowing  amendments  to  the 
pleadings,  it  may  be  well  to  compare  this  section  with  the  sections 
of  the  Kevised  Statutes  heretofore  cited. 

In  a  very  early  case  under  the  Code,"  Justice  Mason,  in  con- 
sidering the  force  and  effect  of  this  section  of  the  Code, 
remarks  that  he  thinks  the  statute  of  amcudments,  as  con- 
tained in  the  Eevised  Statutes,  is  undoubtedly  retained  by  the 
Code.  "I  do  not  see,"  he  says,  "that  there  is  any  conflict 
between  the  two,  and  I  apprehend  that  the  design  of 
[*803]  *  the  Code  was  to  leave  the  statute  of  amendments  as 
contained  in  the  Revised  Statutes '  untouched ;  and  these 
provisions,  in  relation  to  amendments  as  contained  in  the  Code, 
are  to  be  considered  only  in  addition  to,  and  as  a  further  power 
of  amendment  conferred  upon  the  courts ;  and,  it  seems  to  me, 
we  must  consider  these  provisions  of  the  Revised  Statutes  in  rela- 
tion to  amendments  in  connection  with  the  provisions  of  the 

Code." 

Justice  Sill,  on  the  contrary,  in  Spalding  v.  Spalding,  cited 

'  Oeorqe  v.  McAvoy,  6  How.  Pr.  200 ;        ^  Code,  §  173  ;  §  149  original 

1  C.  R.  N.  S.  318.  ''^'•^^'^,  ^-  ^f ''''^^Vr^  ^  Wow  ^' 

s  The  word  "  or  "  was  omitted  in  the  Sept.,  1848,  1  Code  R.  66  ;   3  How.  Pr. 

amendment  of  1851,  but  is  now  in  the  305.       ^  „     ,    _  ^.,,    f,     ^  a 

section  as  it  stands.     See  6  How.  Pr.  '  Part  3,  ch.  7.  title  5,  art.  4. 

3yo. 


824  AMEISrDMEIfTS.  [CH.  IX 

above,  considered  the  section  in  question  as  designed  to  take 
the  place  of  the  statute,  and  held  substantially,  that  the  Code 
had  somewhat  restricted  the  power  of  allowing  amendments,  by 
prohibiting  an  amendment  which  changed  substantially  the  cause 
of  action  (claim),  or  defense,  and  which  he  was  of  opinion  might 
be  done  under  the  old  practice.  This  doctrine  was  dissented 
from  by  Justice  Parker  in  Dows  and  Gary  v.  Green  and 
Mather,^  who  allowed  the  fo7'm  of  action,  or  rather  the  class  to 
which  it  belonged,  to  be  changed  by  amendment,  holding  the 
restriction  in  the  Code  to  have  been  intended  merely  to  prevent 
an  amendment  which  would  substitute  an  entirely  new  subject  of 
controversy.  "  Under  the  Revised  Statutes,"  he  remarks,  "  the 
discretion  of  the  court  in  making  amendments  was  not  limited; 
and  under  that  section,"  the  court  frequently  allowed  a 
[*804]  change  of  the  form  of  action.  *1  How.  Pr.  82  ;  :  id.  43; 
3  id.  148.  It  is  not  the  policy  of  later  legislation  to 
resi/rict,  but  rather  to  encourage  amendments,  so  that  every  cause, 
if  practicable,  shall  be  decided  on  the  merits;  and  to  effect  this, 
the  form  must  always  yield  to  the  substance." 

This  seems  to  be  entirely  in  accordance  with  the  views 
expressed  by  the  commissioners  of  the  Code.'  And  it  agrees 
with  what  was  said  in  Brown  v.  BahcocTc^  sttpra,  and  also  with  a 
case  in  the  New  York  Common  Pleas,  decided  since  the  amend- 
ment which  changed  the  words  "  cause  of  action  "  into  the  word 
"  claim."  *  In  the  case  last  cited,  an  amendment  was  allowed 
after  issue  joined,  the  effect  of  which  was  to  change  a  cause  of 
action  founded  upon  contract  into  an  action  of  tort.  In  Doios 
and  Cary  v.  Green^  above  cited,  it  was  held  the  plaintiff  might 
amend  a  complaint  claiming  a  judgment  for  damages  for  the 
value  of  personal  property  unjustly  detained,  so  as  to  allow  him 
to  proceed  to  judgment  as  in  an  action  for  the  recovery  of  posses- 
sion of  personal  property. 

And  so,  also,  as  in  Field  and  Stone  v.  Morse^  the  mere 
form  of  the  action,  as  in  striking  out  allegations  of  fraud  leaving 
it  simply  an  action  on  contract,  as  has  just  been  observed,  may 
be  changed  by  amendment  without  special  leave  of  the  court. 

'  3  How.  Pr.  388.  *  Ghnpman  v.  Webb  and  Raymond,  6 

«  2  R.  S.  424,  S  1,  2  Edm.  St.  441,  How.  Pr.  390,  per  Daly,  J. 

'  First  Rep.  of  Com.,  p.  168.  '  8  How.  Pr.  47. 


SEC.  I.]  IN   GENERAL.  825 

[*805]  *And  in  the  case  of  F^irniss  v.  Brown^  an  anientlnient 
was  allowed  on  the  argument  of  a  demurrer  by  expunging 
from  the  complaint  so  much  of  it  as  claimed  damages,  and  reduc- 
ing it  merely  to  an  action  for  the  recovery  of  personal  property, 
and  that  without  impairing  an  injunction  previously  issued. 

In  Beardsley  v.  Stover,^  it  is  said  the  court  is  invested  with 
power  in  its  discretion  to  allow  "  any  allegations  material  to  the 
case  "  to  be  inserted  in  the  pleading,  even  though  the  effect  may 
be  to  change  entirely  the  cause  of  action  or  defense.  In  this  case 
it  was  adjudged  that  in  an  action  on  contract,  a  defendant,  after 
issue  joined  and  an  order    of  reference,  might  be    allowed   to 

amend  by  setting  up  a  set-off  by  way  of  counter-claiDi. 
[*806]       *An  amendment  was  allowed  claiming  a  larger  amount 
of  damages  even  after  a  vei-iiied  reply,  reiterating  the  amount 
claimed  in  the  original  complaint.' 

In  Wright  v.  Storms*  on  a  motion  for  leave  to  amend  a  com- 
plaint by  changing  parties,  plaintiff  and  defendant,  the  court  was 
of  opinion  that  it  was  not  the  intention  of  the  Code  that  the 
power  of  amendment  should  be  exercised  to  the  extent  of  allow- 
ing an  entire  change  of  parties  so  as,  in  effect,  to  be  a  new  suit. 
The  plaintiff  must  discontinue  his  action  and  commence  again. 
In  most  cases,  however,  in  the  discretion  of  the  court,  and  "  in 
furtherance  of  justice,"  parties  may  be  added  to,  or  stricken  from, 
the  pleadings  at  any  time  on  terms.  Thus,  in  Ouyler  v.  Coates," 
it  is  said  that  where  the  defense  of  infrincy  is  set  up  by  one  of 
several  defendants,  the  plaintiff'  may,  as  to  him,  discontinue 
without  costs,  on  application  to  the  court  before  the  trial. 

So,  also,  in  Brown  v.  Babcoch,  supra^  the  pleadings  were 
allowed  to  be  amended  by  striking  out  a  defendant,  who  had  been 
erroneously  joined,  on  payment  of  defendant's  costs  of  suit 
[*807]  and  costs  of  *opposing  motion.  In  Bemis  v.  Bronson^ 
it  appearing  at  the  trial  that  there  was  no  cause  of  action 
against  one  of  the  defendants,  on  a  motion  for  nonsuit,  Justice 
Edmonds  allowed  the  pleadings  to  be  amended  by  striking  out 
the  defendant,  on  condition  that  plaintiff'  forthwith  pay  his  costs 

>  8  How.  Pr.  59.  "■  3  Code  R.  138. 

2  7  How.  Pr.  294.  "  10  How.  Pr.  141. 

3  Merchant  v.  N.  T.  Ufe  Ins.  Co.,  2        «  How.  Pr.  305,  1  Code  R.  66. 
Bandf.  669.  '  1  ^o<l«  i^-  ^'■• 

104 


826  AMENDMEN-TS.  [CH.  IX. 

or  give  security  tlierefor.  A  similar  practice  is  sanctioned  bv  the 
court  of  appeals  in  the  late  case  of  Montgomery  County  Bank  v. 
Albany  City  Bank,'  wherein  it  is  held  that  if  two  persons  are 
made  defendants,  and  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action  against  one  of  them,  the  objection 
may  be  made  at  the  trial,  and,  upon  the  fact  appearing,  the  com- 
p.aint  should  be  dismissed  as  to  such  defendant.  And,  even  after 
trial,  the  court  on  appeal  will  allow  a  plaintiff  to  apply  on 
motion  for  leave  to  amend  his  complaint  by  adding  a  party 
defendant,  on  terms,  where  it  appears  that  there  has  been  a  non- 
joinder, as  in  the  case  of  Rochester  and  Genesee  Yallcy  Railroad 
Co.  V.  Beckwith^ 

In  Dutcher  v.  Slack,^  a  party  plaintiff  was  allowed  to  be  added 
on  motion,  the  court  holding  that  an  amendment  as  to  parties 
might  be  made  by  the  Code,  "in  furtherance  of  justice,"  provided 
only  the  amendment  did  not  change  substantially  the  cause  of 
action  or  defense.  The  rule  thus  limited  in  its  applica- 
[*808]  tion  was  undoubtedly  correct,  as  the  Code  "^then  stood,* 
an  amendment  by  the  court  being  allowed  on  terms  only 
"whenever  the  amendment  shall  not  change  substantially  the 
cause  of  action  or  defense."  As  the  Code  now  reads,  however, 
this  clause  stands  by  itself,  disjunctively,  and  it  does  not  by  gram- 
matical construction  hmit  the  power  of  amendment  in  cases  of 
"  adding  or  striking  out  the  name  of  any  party,"  or  "  correcting 
a  mistake  in  the  name  of  a  party,"  or  "  a  mistake  in  any  other 
respect,"  or  "  inserting  other  allegations  material  to  the  case." 
These  four  classes  of  amendments  may  now  be  made  in  the  dis- 
cretion of  the  court,  va  furtherance  of  justice,  which,  it  seems,  is 
the  only  limitation,  and  the  sole  inquiry  on  such  an  application.* 
Within  the  language  of  this  section  as  it  now  stands,  perhaps  the 
amendment  asked  in  Wright  v.  Stoi'^m,  supra,  might  have  been 
properly  allowed.  In  a  partition  case,  Justice  Willard  allowed 
a  plaintiff  to  amend  a  defective  complaint  at  the  hearing,  in  con- 
formity with  the  old  equity  practice,  by  adding  and  striking  out 
parties,  and  making  such  other  changes  as  might  in  consequence 
become  necessary,  on  payment  of  costs  to  the  party  stricken  out 

'  3  Seld.  459.  *  §  149,  original. 

•  10  How.  Pr.  163.  *  So  held  in  Beardsley  v.  Stover,  7 

»3  How.  Pr.  322.  How.  294. 


SEC.  I.]  IN   GENERAL.  827 

of  the  pleadings  incurred  subsequent  to  appearance,'  and  doubtless 

the  same  amendment  might  have  been  made  on  appli- 

[*809]  cation  before  hearing.      A  mistake  in   *the  name  of  a 

party  is  not  a  ground  for  nonsuit,  but  it  can  be  amended 

at  the  trial  or  afterward.'' 

A  complaint  was  allowed  to  be  amended  by  striking  out  the 
name  of  a  party  plaintiff,  who  had  been  discharged  under  the  insol- 
vent debtor  act,  after  the  cause  had  been  referred,  and  some  tes- 
timony taken  therein,  such  plaintiff  being  required  to  pay  the 
costs  of  the  motion,  and  give  security  to  pay  his  portion  of  the 
costs  which  had  already  accrued  in  case  the  defendant  recovered 
judgment.'  The  name  of  a  next  friend,  in  Forest  v.  Forest^ 
was  allowed  to  be  inserted  in  the  pleadings  by  amendment. 
And  it  may  be  inserted,  it  seems,  nunc  j^ro  tunc  at  any  time.* 
And  an  amendment  may  be  ordered  at  any  time  before,  or  at  the 
hearing,  by  bringing  in  the  proper  parties,  who  have  rights  or 
interests  in  the  controversy,  and  whose  presence  is  required  in 
order  to  render  a  full  and  perfect  judgment.' 

In  respect  to  the  correction  of  mistakes,  either  in  the  name  of 
a  party  or  in  any  other  respect,  the  utmost  liberality  is  exercised 
by  the  court.  An  amendment  will  always  be  allowed  which  does 
not  prejudice  the  substantiiil  rights  of  the  opposite  party,  the 
terms  being  usually  payment  of  the  costs  of  the  motion. 
[*810]  In  Vanderhilt  v.  Accessory  Transit  Co.^'  *an  important 
admission  in  an  answer,  made  by  rnistahe,  was  allowed 
to  be  amended  by  interposing  a  denial  on  terras  ;  and  it  was  said 
in  that  case  that  the  doctrine  of  amendments  under  the  Code  is 
to  be  liberally  applied,  or,  as  it  is  expressed  in  the  language  of 
the  decision,  that  the  "  courts  must  be  blind  to  defects  and  indul- 
gent to  amendments."  * 

With  regard,  however,  to  the  clause  which  allows  an  amend- 
ment "  by  inserting  other  allegations  material  to  the  case"  it  is 
very  evident  that,  except  before  trial  and  judgment,  it  must  be 
taken  with  many  limitations  and  restrictions,  and  must  be  con- 
strued with  other  parts  of  the  Code.     A  complaint  defective  for 

*  Vanderwerker  v.   Vanderwerker ,  7        *  3  Code  R.  254. 
Barb.  S.  C.  331,  and  see  ij  133,  Code.  *  6  How.  Pr.  896. 

'  9  Barb.  S.  C.  303.       "  *  Johnson  v.  Sn!,der,  8  How.  Pr.  49a 

*  Davis  V.  Seller merliorn.  5  How.  Pr.        ''  9  How.  Pr.  352. 

140.  »  [Bennett  v.  Lake,  47  N.  Y.  93.] 


828  AMENDMENTS.  [CH.  IX. 

want  of  material  allegations,  that  is,  wliicli  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  is  bad  on  demurrer  and 
is  not  cured  by  a  verdict.  In  Davis  v.  Oarr^  the  defendant 
applied,  after  judgment,  to  open  the  pleadings  and  allow  him  to 
plead  anew,  which  was  denied.     So  in  Malcom  v.  Baker^  where, 

after  the  argument  of  a  cause  on  appeal,  a  motion  was 
[*S11]  *made  to  amend  the  answer  and  was  denied  ;  and  Justice 

Welles  remarks  that,  in  order  to  allow  an  amendment 
under  such  circumstances,  "  it  should  not  only  appear  that  the 
party  has  been  surprised  or  misled,  after  the  exercise  of  ordinary 
care  and  skill,  but  that  the  amendment  asked  for  is  cleai'ly  re- 
quired in  order  to  promote  the  ends  of  justice."  So,  also,  in 
the  late  case  of  Egert  v.  Wicker,^  where,  after  the  hearing  and 
decision  of  a  cause  adverse  to  the  plaintiff,  on  the  ground  of  a 
fatal  variance  between  the  jDleadings  and  proof,  a  motion  to 
amend  the  complaint  by  changing  the  gravamen  of  the  charge, 
was  held  to  be  entirely  too  late  and  was  denied.  The  amendment 
can  only  be  made  when  it  does  not  change  substantially  the 
claim  or  defense. 

So  also  as  to  amendments  of  the  pleadings  by  inserting  material 
allegations  on  the  trial,  as  in  the  case  of  lioth  v.  Schloss,*  where 
the  plaintiff's  counsel  offered  to  prove  a  material  fact  not  alleged 
in  the  complaint,  and  asked  leave  to  amend,  which  was  refused. 
Upon  tlie  motion  in  that  case  for  a  new  trial,  the  court  says : 
' '  This  was  not  a  case  of  variance.  There  was  an  omission  in  the 
complaint  of  the  entire  allegation  offered  to  be  proved.  It  was, 
therefore,  a  case  under  the  149th  section,^  and  the  motion  should 
not  have  been  granted,  unless  it  had  clearly  appeared  that  to  grant 

it  yvonldhe^  in  furtherance  of  justice.''  If  it  be  admitted 
[*812]  that  *  the  fact  offered  to  be  proved  was  material  for  the 

plaintiff  to  establish,  then  that  fact  might  be  controverted 
by  the  defendant,  which  would  require  an  amendment  of  the 
answer,  and,  very  likely,  upon  that  new  issue,  it  would  be  material 
to  produce  witnesses  who  were  not  then  in  attendance  at  the 
court."  The  court,  therefore,  lield  the  application  to  have  been 
very  properly  denied."     It  was  further  said,  in  that  case,  that  the 

>  7  How.  Pr.  311.  '•6Barb.S.C.308,atGen.T.,5thDi3t. 

«  8  How.  Pr.  301.  ^  Original  Code. 

«  10  How.  Pr.  193  «  But  see  Executors  of  Kcese  v.  Ful 


,t.jH^C_  I  1  IN   GENERAL.  829 

denial  oi"  a  motion  to  amend,  where  the  law  reposes  a  discretion 
in  the  judge,  is  not  an  appropriate  ground  of  exception. 

Terms  of  amendment—  The  amendments  indicated  by  the 
section  under  consideration  are  all  to  be  on  "  such  terms  as  may 
be  proper,"  that  is,  as  the  court  in  its  discretion  may  think  fit  to 
impose.  The  costs  of  the  motion,  if  before  trial,  as  we  have 
already  seen,  is  usually  granted.  But  if  the  amendment  is  applied 
for  after  the  cause  is  at  issue  and  actually  noticed  for  trial,  the 
costs  of  the  circuit,  as  well  as  the  costs  of  opposing  the  motion, 
will  be  required  to  be  paid ; '  or,  if  the  name  of  an  adverse  party 
be  struck  out,  his  full  costs  up  to  the  time  of  motion.'  Some- 
times also  other  terms  will  be  imposed.' 
[*813]  3.  Amendments  hy  the  court,  eith&r  on  the  trial,  on 
judgment  rendered,  or  on  motion  of  th*  adverse  party.  ^ 

[There  is  a  class  of  cases  in  which  it  has  been  held,  that  while 
the  courts  before  trial  have  power  to  allow  almost  any  amend- 
ment, yet,  upon  the  trial,  they  can  only  amend  variances  and  such 
matters  as  do  not  materially  change  the  substance  of  the  plead- 
ing." If  by  this  it  is  meant  that,  as  a  matter  of  discretion,  only 
that  class  of  amendments  should  be  allowed  upon  trial  at  circuit 
where  the  party  against  whom  they  are  made  may  be  compelled, 
in  the  hurry  of  a  circuit,  to  change  his  line  of  action  or  defense, 
they  are  undoubtedly  good  law.  As  a  question  oi  power,  how- 
ever the  court  may  allow  any  amendment  upon  the  trial  which 
it  could  allow  on  a  motion  before  trial.^  The  rule,  however,  does 
not  apply  to  trials  before  a  referee  or  the  court  where  the  trial 
may  be  adjourned  without  serious  inconvenience  to  the  parties.' 
Nor  does  it  prevent  the  court,  in  a  case  where  the  cause  of  justice 
requires  the  so  doing,  from  allowing  the  amendment  on  condition 
lerton  1  Code  R.  52.   where  such  an    97;  Cayuga  Co.  Bank  y.  Warden,2iA. 

^nSe'r^s  TtrSlr^Uh  iLv^T:     ''-^  Big.^0  .Bunn,  36  How.  120  ;  53 
defendants  t    a  ,.  twent,  da,.       Barh        O.^and   ca._e     c.^d  ,  ^^^...^  v. 

;  f  r  1    II7  Bushr.  Tilley,  49  Barb.  600. 

^SeegeneraUyastotermsofarnend-         ^  ^f'^'^^''^  ^^.-^iJif  f^l  S^'S' 
ment,  Brown  v.  Bc^cock,  3  How.  Pr^     ^"-{^'if/'.^'i^^i  ^S"  rlard   v 

sit   (7..;9id.352;  Hare.  v.  l^M^^  3  id  1    Hurl    &   ^o.^!^-   40.,    Olendorf   V 

296 ;  Eeese's  Executors  v.  FuUerton,  1  Cooke,  1  Lcxns.  6,  .  ^  ^  qq 
Code  R.  52  ;  Chwpman  v.  Wehh,  6  How.  «  Bennett  v.  Lake,  47  N.  Y.  9d. 
Pr.  390 ,  Corning  v.  Corning,  2  Seld. 


830  AMENDMENTS.  [CH.  IX. 

of  withdrawing  a  juror  and  letting  tlie  case  pass  the  term.  In 
such  a  case,  in  order  that  both  parties  might  fairly  be  heard  as  to 
the  propriety  of  the  amendment,  the  court  would  undoubtedly 
allow  the  party  desiring  it  to  withdraw  a  juror  on  payment  of 
costs,  and  apply  to  the  special  term  for  leave.  Aiier  judgjnent  no 
amendment  should  be  allowed  which  materially  changes  the  plead- 
ings.' It  has  been  held  that  an  unconscionable  defense,  as  the  statute 
of  limitations,  usury,  that  the  party  was  a  married  woman,  etc., 
should  not  be  allowed  ;*  as  matter  of  discretion  the  court  may  refuse 
to  allow  such  a  defense  to  be  interposed  after  the  right  to  amend  of 
course  has  passed,'  notwithstanding  the  court  has  power  to  allow 
it,*  and  in  furtherance  of  justice  will  allow  such  a  defense  *  upon 
terms ; '  the  later  cases  hold  that  no  such  distinction  should  be 
made ; ''  but  such  defenses  should  be  allowed  to  be  set  up  by  way 
of  amendment,  the  same  as  any  other  defense. 

As  where  the  plaintiff's  complaint  shows  a  cause  of  action  not 
barred  by  the  statute,  but  his  proof  shows  such  an  one." 

When  the  facts  are  pleaded,  the  particular  relief  prayed  for 
may  be  changed  on  the  trial,'  and  the  court  should  grant  any 
relief  proper  under  such  facts.""  The  court,  on  motion,  before 
trial,  may  allow  an  amendment  by  bringing  in  new  parties  and 
inserting  any  allegation  proper  to  the  case."  If  tlie  issues  be 
changed,  an  existing  reference  may  be  vacated,'"  or  the  referee  may 
be  changed,"  but  it  is  not  necessary  to  commence  the  trial  de  novo 
if  the  referee  is  not  changed.'*  A  referee  has  the  same  power  to 
allow  an  amendment  as  the  court.'*     The  party  against  whom  an 

'  Bunge  v.  Koop,  5  Rob.  1.  *  Sheldon  v.  Adams,  41  Barb.  54,    18 

'  Clirdoii  V.  Eddy,  37  How.  33 ;  Phil-  Abb.  405 ;  MoElwain  v.   Corning,  13 

lips  V.  Suydam,  6  Abb.  N.  S.  389.  id.  16. 

*  Phillips  V.  Suydam,  6  Abb.  N.  S.  *  McElwain  v.  Corning,  13  Abb.  16. 
289  ;    Clinton  v.  Eddy,  37  How.  33  ;  ■>  Gilchrist  v.  Gilchrist,  44  How.  317. 
Ford  V.  Ford,  53  Barb.  535  ;  Gasper  v.  *  Brichett  v.  Davis,  31  Pick.  404. 
Adams,  34  id.  387 ;  Bobbins  v.  Bichard-  *  Fairchild  v.  Valentine,  7  Rob.  565. 
son,  2  Bosw.  348;  Lovett  v.  Cowman,  '"  OlendorfY.  Cook,  1  Lans.  37. 

6  Hill,  333 ;   Wolcott  v.  McFarland,  6  "  Sai/re  v.  Fraaer,  47  Barb.  36  ;  Par- 
id.  337  ;  Grant  v.  McCaughin,  4  How.  dee  v.  Foote,  9  Abb.  N.  S.  77. 
216  ;    Farish  v.   Corlies,  i  Daly,  374 ;  ''^  Pardee  v.  Foote,  9  Abb.  X.  S.  77. 
Bates  V.  Voorhees,  7  How.  334  ;  Osgood  i^  w/ate  v.  Smith,  1  Lans.  469,  46  N. 
V.  Whettlesey,  30  id.  73,    10  Abb.  134 ;  Y.  418. 

Sagory  v.  If.    Y.,  etc.,  21  How.  455  ;  '■»  White  v.  Smith,  46  N.  Y.  418 ;  but 

McQueen  v.  Babcock,   33  id.    329,    13  see  U>iion  Bank  v.  Mott,  19  How.  267, 

Abb.  268,   41   Barb.  337  ;   see  Harriot  ''  Melvin  v.  Wood,  4  Abb  N.  S.  438,  3 

V.  ir.-'^s,  9  Bosw.  631.  Keyes,  533,  3  Trans.  App.  397;   Wood^ 

*  Union  Bank  \.  Bassett,^  K\)b.^.  ruff  v.  BirMe,  5  Iloh.  (519:  Wliite  v 
S.  359.  Smith,  1  Lans.  4()9,  46  N.  Y.  418  ;  BeT^. 


SEC.  I.]  ^^   GENEEAL.  831 

amendment  is  allowed  should  be  given  the  privilege  of  answer- 
ing it/  when  he  may  answer  generally  and  set  up  any  defense  he 
pleases,  even  the  statute  of  limitations,  usury,  etc'     The  moving 
party  should  serve  a  copy  of  the  proposed  amended  pleading  with 
liis  motion  papers,^  or  embody  in  his   moving  affidavit  a  full 
statement  of  the  facts  he  desires  to  plead  ;*  and  the  affidavit  must 
be  made  by  the  j)arty  and  not  the  attorney,  unless  the  attorney 
be  acquainted  with  facts  and  show  a  good  excuse  for  not  prodnc- 
ino.  the  affidavit  or  sworn  answer  of  the  party/     A  complaint  will 
not  be  allowed  to  set  up  facts  occurring  after  suit  brought  neces- 
sary to  the  cause  of  action/     If  the  court,  or  a  referee,  allow  or 
refuse  an  amendment,  the  allowance  or  refusal  involves  a  matter 
of  discretion,  and,  it  has  been  held,  is  not  appealable ; '  although  m 
several  cases  involving  the  allowance  of  unconscionable  defenses, 
the  contrary  has  been  held/     We  think  an  appeal  lies  to  the  gen- 
eral term  of  the  supreme  court  from  the  granting  or  refusing  of 
such  an  order,  but  not  to  the  court  of  appeals/     Although  the 
general  term  would  not  reverse,  except  in  a  clear  case  of  departure 
from  the  legal  discretion  confided  in  the  special  term/" 

The  court,  as  a  matter  of  practice,  to  avoid  carelessness  or 
intentional  suppression  of  facts  or  a  defense,  should  be  satisfied 
before  allowing  an  amendment  that  there  is  a  good  excuse  lor  not 
before  pleading  it,"  and  that  the  party  did  not  intentionally  put  his 
pleading  in  the  shape  in  which  it  was  to  accomplish  some  purpose 
not  otherwise  within  his  reach  f  or  that  it  was  not  known  to  hnn ;" 
nett  V.  Lalce,  47  id.  93  ;  Van  Ness  v.  \^^'^-^X^on^Z^^^^^^  i^B^l'. 
loTT^w  9.ft7  Union  Bank  v.  Moit,  IJ  la.  ^oi, 


19  How.  261 


^//am.«v.W.  9BoHW.6^^^  Abb^42                 y_  Central  B.  72.,  29 

ker  V.  Granite  Bank   1  Abb  N   S.  40b  Feup^^_  v    i^^                            3^  .^_ 

*  Marquisee  v. Bingham,  13  How.  399  ,  NY .  41«     ^"^g            ^  Reynolds,  33 

Goodhue  V.  Ghtirchman,  1   Barb    Cli  Jf '  ^J«'^^.g^.,^,^^^^^^^^ 

hue\.  Ghurchman,  1  Barb.  Oh.  oJO.  ,         r>  ,7^,..,?  1^  \hb  207-  Thorm 

s//.«iv.T»  GPaige  371.  ^^:;;,^fi'^L^^isl^     'vL 

e  McGullough  V.  Golby,  4  Bossy.  G03  5  v.  ^''""'^"^'A.;,  3  paisre  67  ;  Roqen 

id.  477  ;  Watson  v.  Thibou,  17  Abb  184.  marsh  ^  ■^{"J^P%^i\-'J^^'^^^^^^^  Kennedy 

.  i,*,«,  51  B;,rl,.  610  :  Van  .^ ,»»  v.  ^^^U.^^  *«  1  p,,.,^^  ^^ 
Bush,  32  iriow.  4b i. 


??32  AMENDMENTS.  [CH.  IX. 

but  wlien  tliat  is  shown,  as  when  the  defense  is  one  2^uis  darrien 
continuance^  it  should  be  allowed,  and  it  is  error  to  refuse.*  So  the 
party  asking  to  amend  must  be  free  from  laches."  An  appellate 
court  will  not  reverse  a  judgment  for  defects  in  the  pleadings 
which  neither  surprised  nor  misled  the  appellant  and  which  did 
not  substantially  aifect  his  rights.' 

After  a  case  has  been  tried  without  objection,  or  fully  and  fairly 
litigated  upon  the  merits,  the  courts,  on  appeal,  have  been  very 
liberal  in  amending  the  pleadings  in  favor  of  affirmance  to  con- 
form to  the  proofs ;  *  but  such  amendment  will  only  be  allowed  so 
far  as  the  same  is  consistent  with  equity ;  ^  and  not  to  secure  a  rever- 
sal.' So  if  a  party  do  not  object  until  the  proof  is  closed  the  court 
will  disregard  a  variance  if  the  proof  shows  a  good  cause  of  action.''] 

The  subject  of  amendments  on  the  trial  may  also  properly 
include  amendments  made  after  trial  and  verdict  or  new  trial 
ordered.  I  have  already  briefly  noticed  when,  and  in  what  cases, 
under  the  old  practice,  amendments  would  be  allowed  to  the 
pleadings  after  trial ;  and  the  rule  is  very  similar  under  the  new. 
An  amendment  will  be  permitted  after  trial,  as  under  the  for- 
mer practice,  by  adding  a  new  count  to  the  declaration,  in  a  case 
commenced  before  the  Code.*  And  even  after  a  nonsuit,  though 
the  general  rule  is  to  the  contrary,  yet  a  plaintiff  under  peculiar 
circumstances  may  have  leave  to  amend  and  have  a  new  trial,  in 
analogy  with  the  former  practice.  So  held  under  the  Code,  in 
BaXcom  v.  Woodruff ^^  M^here  a  plaintiff  had  been  nonsuited  at 
the  circuit,  on  the  ground  that  his  declaration  contained  no  count 
adapted  to  the  nature  of  the  case.  It  appearing  that  the  defend- 
ant had  not  been  misled  ;  that  the  cause  had  been  once  tried  with- 
out any  objection  having  been  made ;  that  the  statute  of  limita- 
tions had  attached  ;  and  that  such  relief  would  be  manifestly  in 
furtherance  of  justice,  the  court  allowed  the  plaintiff  to  amend 

>  Bailey  v.  Kay,  50  Barb.  110.  40  Barb.  213  ;  Rosboro  v.  Ppxk,  48  id 

2  filters  V.  Oenin,  8  Abb.  253, 3  Bosw.  93. 

639,  affirmed,    10  Abb.  478,  19  How.  ^  .Worrell  v.  Irving  Fire  Ins.  Co..  33 

233  ;  Cheeseman  v.  Sturgis,  19  Abb.  293 ;  N.  Y.  446. 

Cocks  V.  Radford,  13  id.  207  ;  SMdon  « Williams  v.  Birch,  6  Bosw.  674 ;  8ta/r 

V.  Adams,  41  Barb.  51,  18  Abb.  405  ;  Steamxhip  Company  v.  Mitchell,  1  Abb. 

27  How.  179  ;  Rogers  v.  Rogers,  1  Paige,  N.  S.  39G. 

424;  Vermilyea  v.  Odcll,  4  id.  121.  '  Meyer  v.  Fiegel,  7  Rob.  122. 

*  Johnson  V.  Hathorn,  3  Keyes,  126.  ^  Bur  nap  v.  Bahcock,  1  Code  R.  51. 

*  Bedford  v.  Terhune,  30  N.  Y.  »  7  Barb.  S.  C.  14  at  general  term,  5th 
453,  27  How.  422  ;  Denman  v.  Prince,  district. 


SEC.  I.]  IN    GENERAL.  833 

his  declaration  nunc  pro  tunc  and  set  aside  the  nonsuit  on  pay- 
ment of  costs. 
[*814]  ^^ Amendments  after  trial,  however,  are  allowed  with 
great  caution,  and  not  unless  upon  good  cause  shown.  It 
was  YQYj  properly  said  in  Houghton  v.  Skinner^  that,  thougli  the 
Code  gives  great  latitude  of  discretion  as  to  amendment,  yet 
there  must  be  some  limit ;  and  that  in  the  exercise  of  dis- 
cretion the  old  rules  are  safe  guides,  and  must  be  followed 
unless  some  very  special  reasons  render  their  application  unjust. 
In  that  case,  after  trial  and  verdict  for  plaintiff,  a  motion  by  de- 
fendant for  leave  to  plead  a  former  judgment  against  a  co-defend- 
ant, the  defendant  having  knowledge  thereof  before  answer,  was 
denied. 

Before  the  Code,  it  was  well  settled  that  the  supreme  court  had 
no  power  to  allow  an  amendment  of  a  declaration  after  verdict, 
by  increasing  the  amount  of  damages  claimed,  to  correspond  with 
the  amount  of  the  verdict ;  except  upon  the  condition  that  the 
plaintiff  relinquish  the  verdict,  pay  the  defendant's  cost  of  the 
trial,  and  consent  to  a  new  trial."  It  is  held  by  the  court  of 
appeals  that  the  Code  has  not  changed  this  rule.'  The  power  to 
amend  a  complaint  after  judgment,  it  has  been  well  said,  is  an 
extraordinary  power,  and  should  be  very  sparingly  exercised, 
even  under  the  liberal  system  of  amendments  allowed  by  the 
Code.  The  cases  of  Field  v.  HawkJmrst*  Malcom,  v. 
[*815]  Baker ^^  Davis  v.  Oa/rr*  and  Egert  v.  Wicker^  *since  the 
Code,  in  all  of  which  motions  to  amend  the  pleadings 
after  judgment  or  the  decision  of  the  cause  were  denied,  may  be 
consulted,  and  show  the  strictness  with  which  our  courts  are  still 
inclined  to  adhere  to,  and  apply,  the  former  rule  in  this  class  of 
cases.  But  a  mere  formal  amendment,  not  altering  the  plaintiff's 
title  to  the  relief  sought,  or  the  nature  or  terms  of  the  relief,  may 
be  made ;  and  when  such  an  amendment  is  made,  in  a  case  where 
one  of  the  defendants  has  suffered  default,  it  may  be  made  Avith- 
out  notice  of  motion  to  him,  and  the  judgment  entered  thereon 
will  be  regular.  * 

>  5  How.  Pr.  430.  ^7  How.  Pr.  311. 

«  17  Johns.  Ill,  3  Wend.  356.  "'  10  How.  Pr.  193. 

'  Corning  v.  Corning,  3  Seld.  97.  *  Clnson  v.  Corleii,  5  Sandf.  455.    See 

*  9  How.  Pr.  75.  also  Lettman  v.  Ritz,  3  id.  734 ;  Debaix 

'  8  How.  Pr.  301.  v.  Lehind,  1  Code  R.  N.  S.  235. 
105 


834  AMENDMENTS.  [CH.  IX. 

In  respect  to  amendments  at  the  trial,  I  have  already  briefly 
noticed  one  or  two  cases  in  which  they  might  be  properly  al- 
lowed, mainly  with  respect  to  adding  or  striking  out  the  names 
of  parties,  and  the  terms  upon  which  such  amendments  will  be 
allowed.' 

From  the  case  of  executors  of  Keese  v.  Ftdlerton^  it  seems  that, 
although  the  court  may  not  at  the  trial  absolutely  dismiss  a  com- 
plaint when  it  does  not  contain  material  allegations  sufficient, 
etc.,  but  may  suffer  an  amendment  to  be  made  on  payment  of 
costs ;  yet,  from  the  subsequent  case  of  Roth  v.  Schloos,  cited 
above,'  it  appears  that  this  can  only  be  done  under  peculiar  cir- 
cumstances, and  when  it  is  clearly  %n  further  a/nce  of  justice. 
[*816]  In  ^ Bates  v.  Graham*  in  the  court  of  appeals,  it  is  said 
that  where  a  defective  allegation  in  the  complaint  is  sup- 
plied by  an  averment  in  the  answer,  it  is  a  proper  case  to  allow 
an  amendment  at  the  trial. 

An  application  to  amend  at  the  trial  is  addressed  to  the  discre- 
tion of  the  court,  and  the  decision  thereof  is  not  the  subject  of 
re^dew,  and  this,  too,  although  the  amendment  asked  be  denied.* 
So,  too,  the  discretion  may  be  exercised  by  allowing  an  amend- 
ment on  the  trial,  consisting  in  striking  out  parts  of  an  objec- 
tionable count,  and  that,  without  costs  to  either  party.  Such  an 
amendment  was  considered  by  the  court  of  appeals  to  be  an 
amendment  "  upon  such  terms  as  may  be  proper,"  within  the 
meaning  of  the  Code.' 

It  has  been  observed  on  a  former  page,  that  the  clause  allowing 
an  amendment  to  be  made  "by  inserting  other  allegations  mate- 
rial to  the  complaint,"  could  not  extend  so  far  as  to  allow  an 
amendment  in  aid  of  a  judgment  defective  for  want  of  such 
material  allegations.  Such  a  judgment  must  be  reversed,  even 
though  the  defendant  has  neglected  to  take  the  objection  by 
demurrer,'  But  it  is  held  that  on  the  reversal  of  such  a  judg- 
ment the  plaintiff,  in  such  case,  on  payment  of  cost,  may  have 
leave  to  amend  his  complaint  by  inserting  the  material  allega- 

>  See  5  How.  Pr.  440,  1  Code  R.  27,  "  FMncle  v.  Vaughn,  13  Bfirb.  215  ; 

7  Barb.  S.  C.  231,  10  How.  Pr.  141,  id.  Brown  v.  McCune,  5  Sandf.  225. 

163, 3  Seld.  459.  «  Cayuga  Bank  v.  Warden,  3  Seld.27. 

'  1  Code  R.  53.  ■•  Bayner  v.  Clark,  7  Barb    S.    C. 

»  6  Barb.  S.  C.  308.  581. 

*  11  N.  Y.  337. 


SEC.  I.]  IN   GEISTERAL.  535 

[*817]  tions,  giving  tlie  defendant  tlie  right  of  *reply  ;  thus  plac- 
ing both  parties  precisely  in  their  former  position. 

And,  generally,  on  the  reversal  of  a  judgment  in  all  cases  of 
erroneous  pleading  or  other  defect,  which  would  have  been  the 
subject  of  demurrer  had  it  appeared  on  the  face  of  the  pleading, 
the  court  will,  if  the  pleading  is  capable  of  being  amended  so  as 
to  show  a  good  cause  of  action  without  changing  the  substance, 
allow  it  to  be  so  amended  on  the  terms  of  payment  of  all  costs 
subsequent  to  the  pleading.  But  the  court  will  not,  on  the  argu- 
ment of  an  appeal  from  a  judgment^  entertain  an  original  motion 
to  amend,  changing  the  nature  of  a  defense,  rendering  a  new  trial 
necessary,  and  thereupon  reverse  the  judgment  and  order  such 
new  trial.* 

So,  too,  on  the  decision  of  a  demurrer,  either  at  general  or 
special  term,  amendments  are  allowed  with  great  liberalitj-,  either 
to  the  plaintiff's  complaint  or  reply  or  the  defendant's  answer. 
The  latter  part  of  section  172  of  the  amended  Code  makes  pro- 
vision on  this  subject  as  follows  : 

"  After  the  decision  of  a  demurrer,  either  at  a  general  or  special 
terra,  the  court  may,  in  its  discretion,  if  it  appear  that  the 
demurier  was  interposed  in  good  faith,  allow  the  party  to  plead 
over  upon  such  terms  as  may  be  just.  If  the  demurrer  be  allowed 
for  the  cause  mentioned  in  the  fifth  subdivision  of  section  144,  the 
court  may,  in  its  discretion,  and  upon  such  terms  as  may  be  just, 
ord?r  the  action  to  be  divided  iuto  as  many  actions  as  may  be  neces- 
sar}*  to  the  proper  determination  of  the  causes  of  action  therein 
mentioned." 

[*818]  *The  object  of  these  provisions  is  sufficiently  apparent. 
The  discretion  of  the  court  in  allowing  the  defendant  to 
plead  over  on  terms  is  unlimited,  save  by  the  one  restriction,  that 
the  demurrer  must  appear  to  have  been  interposed  in  good  faith. 
An  amendment  of  the  plaintiff's  complaint  is  also  allowed  on 
judgment  against  him  upon  a  demurrer.  The  section  above 
cited  specifies  but  the  one  case,  that  is,  where  several  causes  of 
action  have  been  improperly  joined  in  which,  instead  of  turning 
the  plaintiff  out  of  court,  and  leaving  him  to  commence  new 
actions,  the  court  may  divide  the  action  on  payment  by  the 
plaintiff  of  defendant's  costs.     Judgment  rendered  against  the 

■'  Brown  v.  CoUe,  1   Smith's  N.   Y.        M  Chit.  PI.  198.4  Wend.  95. 
Com.  PI.  206. 


8c56  AMENDMEISTTS.  [CII.   IX. 

plaintiff,  on  demurrer  for  some  defect  not  going  to  tlie  merits  of 
the  action,  cannot  be  i^leaded  in  bar  to  another  action  for  the 
same  demand."  It  cannot,  therefore,  be  absohitely  necessary  in 
all  cases  to  allow  an  amendment  on  judgment  against  the  plaintiff 
on  demurrer;  because  he  may,  if  he  choose,  commence  anew 
action.  But  instances  occur  in  which  it  is  not  only  proper,  but 
absolutely  necessary  to  prevent  a  failure  of  justice,  that  an  amend- 
ment should  be  allowed  to  the  complaint  after  judgment  against 
the  plaintiff  on  demurrer.  The  case  of  Furnis  v.  Bi'own,'  under 
the  Code,  may  be  cited  as  an  example  of  the  practice  of  allowing 
an  amendment  of  the  complaint  on  the  decision  of  a  demurrer. 

In  that  case  the  plaintiff  was  allowed  to  amend  by  elec- 
[*819]  tion  whether  *  his  complaint  should  be  in  replevin,  or  in  an 

action  for  damages  for  breaking  a  contract. 
Whenever  judgment  might  be  pleaded  in  bar  to  another 
recovery,  if  the  plaintiff  otherwise  show  a  good  cause  of  action, 
he  should  be  allowed  to  amend.  As,  for  example,  when  the  com- 
plaint does  not  show  that  the  plaintiff  has  legal  capacity  to  sue, 
as  a  wife,  without  next  friend,  or  an  infant  without  guardian.  The 
same  is  true  where  the  objection,  not  appearing  on  the  face  of  the 
complaint,  is  taken  by  answer,  and  under  the  old  practice  would 
have  been  set  up  by  plea  in  abatement.  A  verdict  for  defendant 
in  such  cases,  and  judgment,  ought  not  to  be  final ;  but  the  plain- 
tiff*, on  showing  a  good  cause  of  action,  where  the  merits  have 
not  been  inquired  into  on  the  trial,  ought  to  be  suffered  to  amend 
after  verdict,  and  a  new  trial  granted  on  payment  of  the  costs. 
So,  too,  where  the  pleading  is  defective  either  for  want  of  show- 
ing sufficient  facts,  mistake  in  parties,  or  for  any  other  cause,  and 
the  statute  of  limitations,  if  the  plaintiff  is  driven  to  a  new 
action,  will  attach  ;  in  all  such  cases  he  should,  on  proper  terms, 
after  verdict  or  judgment  on  demurrer,  be  permitted  to  amend  ; 
at  least  to  the  extent  that  he  was  allowed  to  do  under  the  former 
practice.' 

On  error,  the  court  may  make  such  amendment  as  could 
[*820]  be  made  by  the  court  below.'     And  *  where  the  defect  is 

'  8  How.  Pr.  59.  Barnes  v.  Ferine,  9  id.  202  ;  Willis  v. 

'  See  cases  heretofore  cited,  and  see     Underhill,  6  How.  Pr.  39G. 
Balcom  v.  Woodruff.  7  Barb.  S.  C.  13  ;        ^  7  Johns.  468    [Bennett  v.  Lake,  47 

N.  T.  93]. 


SEC.  I.]  IN   GENERAL.  837 

such  as  should  have  been  amended  in  the  court  below,  the  ecui-fc 
of  appeals  will  not  reverse  a  judgment  overruling  a  demurrer  for 
such  cause.* 

When  an  amendment  cannot  be  made  of  course,  it  must  be 
made  by  order  of  the  court. 

Amendments  are  also  made  to  the  pleadings  bj  the  court  on 
motion  of  the  adverse  party.  This  is  under  section  160  of  the 
amended  Code  providing  for  striking  out  irrelevant  and  redundant 
matter ;  but  as  that  subject  has  been  already  fully  considered,  it 
will  not  be  necessary  to  pursue  it  further  in  this  place. 

The  section  also  provides,  that : 

"  When  the  allegations  of  a  pleading  are  so  indefinite  or  uncertain 
that  the  precise  nature  of  the  charge  or  defease  is  not  apparent,  the 
court  may  require  the  pleading  to  be  made  more  definite  and  certain 
by  amendment." 

This  provision  of  the  Code  may  be  frequently  resorted  to  with 
effect  by  the  adverse  party  to  correct  a  pleading  which  is  ambigu- 
ous or  unintelligible,  or  which,  from  the  vagueness  of  its  language, 
or  its  inartificial  manner  of  statement,  is  either  calculated  to  mis- 
lead the  opposite  party,  or  is  not  susceptible  of  a  direct  and  posi- 
tive answer.  The  motion  may  be  very  often  effectively 
[*821]  resorted  to  instead  of  a  demurrer,  *and,.  indeed,  in  many 
cases,  perhaps,  it  may  be  the  only  proper  way  to  reach  the 
objection. 

The  language  of  the  Code  is, "  where  the  allegations  of  a  plead- 
ing are  so  indefinite  or  uncertain,  that  the  precise  nature  of  the 
charge  or  defense  is  not  apparent."  This,  it  is  evident,  is  suscep- 
tible of  a  broad  application  ;  and  the  motion  ma}'-  be  made  to 
correct  a  pleading  on  this  ground,  not  only  in  cases  where  a 
demurrer  will  not  lie,  but  in  many  cases  where  a  demurrer  also 
would  be  proper. 

What  is  certainty  in  a  pleading  has  been  already  considered.' 

A  former  definition  of  the  Code  in  regard  to  the  statement  of 

facts  was,  that  it  should  be  made  "  in  such  a  manner  as  to  enable 

a  person  of  common  understanding  to  know  what  is  intended."  * 

This  language  was  found  to  be  open  to  criticism,  and  it  lias  not 

been  retained  by  the  latter  amendments.     The  only  rule  of  cer- 

:  4  Comst.  276.  »  Code  of  1849,  §§  142,  149  and  153. 

*  Ante,  pp.  7^8,  739,  marg.  p. 


838  AMENDMENTS.  [CH.  IX. 

tainty,  now  indicated  in  terms  by  tlie  Code  is,  that  the  statement 
of  facts  must  be  "  plain  and  concise  ; "  or,  "  in  ordinary  and  con- 
cise language  without  repetition,"  '  The  former  well-established 
rules  for  the  construction  of  pleadings,  it  is  supposed,  may  still  be 
serviceable  as  a  test  whether  the  pleading  is  certain  and  definite 
within  the  meaning  of  the  Code. 


[*822]  *  SECTION  II. 

VARIANCES  BETWEEN  PLEADING  AND  PROOF. 

The  first  three  sections  of  that  chapter  of  the  Code,  relative  to 
mistakes  in  pleading  and  amendments,  now  under  consideration, 
contain  the  provisions  of  the  Code  on  the  subject  of  variances. 
The  first  of  these  sections  relates  to  material  variam^ces  appearing 
in  proof,  defines  what  shall  be  deemed  to  constitute  such  variance, 
and  provides  a  remedy.     It  is  as  follows : 

"  No  variance  between  the  allegation  in  a  pleading  and  the  proof 
shall  be  deemed  material,  unless  it  have  actually  misled  the  adverse 
party,  to  his  prejudice,  in  maintaining  his  action  or  defense  upon 
the  merits.  Whenever  it  shall  be  alleged  that  a  party  has  been  so 
misled,  that  fact  shall  be  proved  to  the  satisfaction  of  the  court, 
and  in  what  respect  he  has  been  misled  ;  and  thereupon  the  court 
may  order  the  pleading  to  be  amended,  upon  such  terms  as  shall 
be  just."^ 

The  next  succeeding  section  of  this  chapter  provides  for  the 
case  of  an  im/material  variance^  and  the  manner  of  treating  it,  as 

follows : 

'•'  Where  the  variance  is  not  material,  as  provided  in  the  last 
section,  the   court  may   direct  the  fact  to  be   found   according  to 
the  evidence,  or    may  order   an    immediate   amendment   without 
costs."  ^ 

[*823]  The  rule  indicated  in  these  sections  is  very  nearly  the 
rule  of  the  civil  law  on  the  subject  of  variances,  which 
proceeds  on  the  principle  of  disregarding  all  variances  upon  the 
trial,  except  in  case  of  surprise.  Or  as  the  rule  is  laid  down  in  a 
case  in  the  United  States  circuit  court,*  if  either  party  mistakes 
in  setting  out  his  cause  of  action,  and  yet  not  so  as  to  mislead  the 

1  Same  sections.  Code,  1851.  *  Crawford  v.  The  William  Penn,  3 

5  Code,  §  169.  Wash.  C.  C.  484. 

3  Code,  I  170. 


SEC.  II.  j  BETWEEN   PLEADINGS   AND   PROOF.  839 

Other  :party,  the  court  wOl,  notwithstanding,  proceed  to  make  a 
decree  disregarding  the  variance  between  the  pleading  and  proot. 
The  last  of  these  sections  is  a  definition  of  what  shall  be 
deemed  a  variance  within  the  meaning  of  these  provisions,  and  is 
in  the  following  words : 

"Where  however,  the  allegation  of  the  cause  of  action,  or 
defense,  to'which  the  proof  is  directed,  is  unproved,  not  m  some 
particular  or  particulars  only,  but  in  its  entire  scope  and  meanmg, 
It  shall  not  be  deemed  a  case  of  variance  withm  the  last  two  sec- 
tions but  a  failure  of  proof."  ' 

This  section,  it  is  evident,  is  a  material  quahfication  to  the  one 
first  above  quoted,  and  limits  the  power  of  the  court  to  order  an 
amendment  on  the  trial  where  the  proof  is  defective,  to  those 
cases  only  in  which  some  particular  portion  of  the  allegations  is 
not  sustained,  but  the  cause  of  action  or  defense  is  otherwise  sub- 
stantially made  out.     If  the  whole  fail,  it  is  no  case  of  variance, 
and  there  can  be  no  amendment  for  the  purposes  of  the  trial.    In 
such  case,  it  seems,  the  plaintiff  must  be  nonsuited  with 
[*824]  *costs,  and  the  complaint  dismissed,  at  least  so  far  as  the 
pending  trial  is  concerned,  unless  it  clearly  appear  to  be  in 
fuHhercmce  of  justice  to  allow  the  amendment.'     Thus,  in  Egert 
V  Wider;  it  was  held  that  a  variance  at  the  trial  could  not  be  dis- 
rec^arded,  and  an  immediate  amendment  made  where  such  amend- 
ment would  substantially  change  the  whole  scope  and  character 
of  the  claim,  making  it  to  all  intents  and  purposes  a  new  action 
requiring  a  new  line  of  defense.     Nor  would  such  a  variance  be 
disregarded,  or  amendment  allowed  at  a  later  period.     It  was  not 
a  case  of  variance  which  might  be  disregarded  but  ^failure  of 
proof  of  the  claim  in  its  entire  scope  and  mea/ning,  and  as  such 
fatal  to  the  further  maintenance  of  the  action. 

The  same  rule  was  applied  in  the  New  York  superior  court,  in 
the  recent  case  of  Catlin  v.  Hanson^  to  the  admission  ot  proof 
on  the  part  of  a  defendant.  The  action  in  that  case  was  agains 
the  maker  of  a  promissory  note,  and  the  defense  set  up  was  that 
the  note  in  suit  had  been  delivered  to  B  (by  whom  it  was  trans- 
ferred  to  the  plaintiff ),  for  a  renewal  of  a  former  note  of  the  detend- 
ant,  for  the  same  amount  held  by  B ;  and  after  such  delivery  the 
in.^«  R  171  "10  How.  Pr.l93. 

» S  V.  SoMoss.  6  Barb.  S.  C.  308.  '  1  Duer. 


840  AMEISTDMENTS.  [CH.  IX. 

first  note  had  not  been  returned  and  tliat,  therefore,  there  was  no 
consideration  for  the  note  in  suit.     It  was  held  that,  under  such 

an  answer,  evidence  could  not  be  giv^en  tending  to  prove 
[*825]  that  B,  before  the  note  *in  suit  was  delivered  to  him,  had 

parted  with  the  first  note  to  a  holder  for  value,  and  that 
his  transfer  to  the  plaintiff  of  the  note  in  suit  was,  therefore,  a 
fraudulent  misapplication.  "  The  allegation  of  the  defense,"  says 
the  court,  "  was  unproved  in  its  entire  scope  and  meaning,  and 
the  case  is  one  on  which  there  was  an  entire  failure  of  proof. 
The  court  at  the  trial  cannot  direct  the  pleading  amended,  or 
the  fact  to  be  found  according  to  the  evidence  in  such  a  case. 
It  can  only  do  this  where  the  variance  between  the  pleading  and 
proof  is  not  calculated  to  mislead  the  plaintiff  in  maintaining 
his  action,  and  not  where  the  defense  proved  differs  in  its  entire 
scope  and  meaning  from  that  set  up  in  the  answer." 

[Proof  of  an  implied  contract  will  not  be  a  variance  from  alle- 
gations of  an  express  one ;  *  and  so  of  a  verbal  contract  where  a 
written  one  is  alleged."  So  where  the  complaint  seeks  to  recover 
back  money  paid  by  mistake,  and  alleges  a  demand  and  refusal  to 
pay  back,  but  the  proof  shows  a  promise  to  repay  it ;'  so  where 
a  complaint  for-  specific  performance  alleges  that  defendant  sold 
and  agreed  to  convey  the  premises  to  plaintiff,  and  the  proof 
showed  an  agreement  to  convey  in  consideration  that  the  plaintiff 
a  son,  would  enter  upon  and  improve  it  ;*  so  a  variance  as  to  the 
time  alleged ;  ^  or  an  error  in  referring  to  a  wrong  section  of  the 
statute ; '  so  where  the  complaint  alleged  an  agreement  to  sell  a 
claim  against  a  third  party,  and  the  proof  showed  that,  in  addi- 
tion to  selling  and  transferring  it,  the  third  party  was  to  be 
released  from  all  liability  ; '  so  where  the  complaint  against  an 
indorser  alleged  a  demand  and  notice,  and  the  proofs  showed  a 
waiver  thereof ; '  and  where  the  complaint  alleged  that  no  part  of 
an  annuity  had  been  paid,  and,  on  a  plea  of  the  statute  of  limita- 
tions, plaintiff  proved  a  payment  to  avoid  it ;  *  also  where  the 

'  See  ante,  p.  249,  marg.  p. ;  Smith  v.  *  Bryant  v.  Bryant,  2  Rob.  612 ;  Bab 
Lippincott,  49  Barb.  398;  Fells  v.  Vest-    bitt  v.   Yonnrj,  51  Barb.  4G6. 

vali,  2  Keyes,  152.  •  McHarg  v.  Eastman,  7  Rob.  137. 

''  Hamilton  v.  Gridley,  54  Barb.  542.  "'  Meridoii,etc.,v.Zinysen,4:  Rob.  313. 

»  Rosboro  V.  Peck,  48  Barb.  92,  94.  ^  Hnrrkon  v.  Bailey,  99  Mass.  620. 

*  Lobdell  V.  Lobdell,  36  N.  Y.  330,  33  »  Meusck  v.  Meiisch,  2  Lans.  235. 
How.  347. 


SEC.  II.]  BETWEEN  PLEADINGS   AND   PEOOF.  841 

complaint  alleged  a  wrongful  taking  and  conversion,  and,  in 
order  to  recover  vindictive  damages,  proof  was  given  that  it  was 
willful  and  malicious ;'  w^here  the  complaint  alleged  that  defendant 
executed  a  note  as  collateral  security  for  a  loan  by  plaintiff  to  tlie 
payee,  held  sufficient  to  authorize  evidence  of  defendant's  privity 
with  the  negotiation,  and  that  averments  of  making  and  indorse- 
ment were  equivalent  to  an  averment  of  delivery." 

Where  the  complaint  alleged  that,  in  order  to  induce  plaintiff 
to  purchase  a  horse,  defendant  falsely  and  fraudulently  made  cer- 
tain representations,  it  was  held  that  the  complaint  was  for  fraud, 
and  that  on  failure  to  prove  scienter  the  plaintiff  could  not  recover ;' 
where  the  complaint  alleged  defendant,  in  order  to  procure  plain- 
tiff's indorsement  of  a  treasury  draft,  represented  he  would  not 
take  the  proceeds  to  California,  but  after  paying  certain  claims  he 
v/ould  return  the  remainder ;  the  representations  were  held  to 
be  promises  as  to  future  conduct  and  not  to  sustain  an  action  for 
fraud  ;*  where  defendant  agreed  to  procure  fifty  warps  to  be  manu- 
factured and  to  sell  and  deliver  them  to  plaintiff";  dehvered  a  por- 
tion of  them,  and  after  procuring  the  remainder  to  be  mauutactured, 
sold  them  to  another,  held,  that  on  a  complaint  for  the  profit  of  the 
sale,  between  the  agreed  price  and  the  price  at  which  they  were  sold, 
plaintiff  could  not  recover  without  proof  of  an  express  agreement 
to  sell  the  warps  on  his  account.  That  he  should  have  sued  for  a 
breach  of  the  executory  contract  to  deliver ;'  where  a  complaint 
against  a  carrier  alleges  a  conversion,  proof  of  a  negligent  loss  or 
of  a  failure  to  deliver  will  not  sustain  a  recovery.'  In  such  case, 
the  complaint  should  have  counted  upon  defendant's  duty  as  a 
carrier  and  of  his  failure  to  perform  it.'  Under  such  a  com- 
plaint, however,  where  the  complaint  alleged  that  defendant 
neglected  to  forward  the  property  from  the  place  to  which  it 
had  been  consigned  and  negligently  lost  the  same,  proof  that  the 
goods  were  forwarded  to  the  place  of  consignment,  and  that  defend- 
ant there  refused  to  deliver  it,  will  not  support  the  complaint ;' 
so  where  the  complaint  seeks  to  set  aside  transfers  on  the  ground 

•  Wilde  V.  Hi'xter,  50  Barb.  448.  "  Sharp  v.  Simons,  49  Barb.  407. 

'^  Metier  v.  Ilihaher,  47  X.  Y.  2(15.  '  Tolfno  v.  T7ie  N<itional,  etc.,  4  Abb 

»  31oor6  V.  Noble,  53  Barb.   425,  36  N.  S.  3l(),  5  Bob.  318. 

How.  385.  ■"  Tolauov.  The  If aiional,  etc.,  4  Ahh 

*  Gray  v.  Palmer,  2  Rob.  500,  41  N.  N.  S.  31 «,  5  T>ob.  318. 

i    510,(520  »  Eoisebrou/i:ti  V.  L'iitsmnreA'iloh.Qli 

106 


842  AMEXDMEXTS.  [CII.  IX. 

they  were  obtained  by  fraud,  and  the  proof  showed  they  an-iovmtcd 
to  mortgages  from  which  plaintiff'  had  a  right  to  redeem ;'  so 
where  the  complaint  is  in  replevin  and  the  proof  shows  a  return 
before  suit  commenced,  although  after  the  papers  were  delivered  to 
the  sheriff,  the  plaintiff  cannot  recover  as  for  damages  sustained  by 
a  wrongful  taking  and  detention  f  evidence  that  plaintiffs  sold 
and  delivered  their  own  goods  to  defendant  will  not  sustain  a  com- 
plaint for  jnoney  paid,  laid  out  and  expended  f  so  under  a  com- 
plaint for  damages,  on  account  of  a  breach  of  covenant,  plaintiff  can- 
not have  judgment  for  a  specific  performance  ;*  so  under  a  complaint 
for  specific  performance,  the  plaintiff  cannot  recover  damages 
unless  his  complaint  asks  such  alternative  relief  f  so  under  a 
complaint  on  the  basis  of  a  legal  transfer  of  property,  plaintiff 
cannot  treat  the  transfer  as  tortious  and  recover  as  for  a  conver- 
sion/ "Where  the  complaint  charges  a  nuisance  upon  certain 
premises,  the  plaintiff  cannot  recover  upon  proof  of  a  nuisance 
upon  those  adjoining/  Where  the  answer  set  up  a  delivery  of 
property  to  be  retained  as  a  gift  in  case  of  the  death  of  the  donor 
at  any  time,  proof  that  donor  gave  the  donee  the  property  as  a 
gift  donatio  mortis  causa  will  not  support  the  allegations  in  the 
answer,  because  the  latter  necessarily  imply  that  the  donor  at 
the  time  of  the  alleged  gift  was  in  imminent  peril  of  death  from 
a  proximate  and  impending  peril.*  Where  the  complaint  alleges 
an  artificial  channel,  it  is  not  sufficient  to  prove  a  natural  one  ;' 
so  where  there  is  a  material  variance  as  to  the  rate  per  cent  in 
usury  unless  amended." 

So  where  plaintiff  claimed  to  recover  the  possession  of  a  draft 
and  in  another  count  to  recover  a  certain  sum  of  money  which  he 
claimed  belonged  to  him,  held  that  on  proof  that  defendant  had 
sold  pork  for  him  and  received  therefor  the  draft  which  he  had 

'  Patterson  v.  Patterson,  1  Abb.  N.  ^  Dexlieimer  v.  Oautier,  5  Rob.  21G, 

S.  262,  1  Rob.  184.  34  How.  472  ;  Irishv.  Nutting,  47  Barb. 

'^  Nasser  v.   Coricin,  36  How.  540  ;  370 ;  Oourley  v.  Linsenbigler,  51  Penn. 

Christie  v.  Corbett,  34  id.  19.  St.  345. 

3  Field  V.  Si/ms,  2  Rob.  3o.  *  Schaefer  v.  Herb,  7  Rob.  222. 

*  Bidder  v.  Jehuy,  2  Rob.  56.  '"  Orir/gs  v.  Howe,  3  Keyes,  106.    See 
5  Bradley  v.  Aldrieh,  40  N.  Y.  504  ;  Manning  v.  TyUr,  21  N.  Y.  567;  Cat- 

di8tin<riiiHlung  Barloio  v.  Scott,  24  id.  lin   v.    Gunter,  11  id.  368  ;    Dauel  v. 

40.    See  Stevenson  v.  Buxton,  37  Barb.  Spence,  1  Abb.  237 ;  Ilagal  v.  Simmons, 

13,  15  Abb.  352  ;  Lewis  v.  Mott,  36  N.  23  N.  Y.  491 ;  Origgs  v.  Howe,  31  Barb. 

Y.  399  ;  McKeon  v.  See,  4  Rob.  465.  100  ;    MecMnics'   Brnk  v.   Foster,  19 

*  Leicis  V.  Afott,  36  N.  Y.  395.  Abb.   47  ;    Moak's  Notes    to   Clarke's 
'  Irvin  V.  Wood,  4  Rob.  140.  Ch-  373  (new  ed). 


SEC.  II.]  BETWEEN   PLEADINGS   AXD   PP.OOF.  843 

')i-ocure<-l  to  be  discounted  and  the  money  placed  to  Ins  credit  in 
bank,  lield  plaintifl:  could  not  recover  ;V  although  if  the  complaint 
had  set  out  the  facts  plaintiff  might  have  recovered."  So  he 
mi'dit  have  recovered  in  trover  if  the  defendant  had  not  had  a 
rigSt,  and  had  it  not  been  a  part  of  his  duty  to  negotiate  the 
draft ;  the  owner  of  paper  sent  for  collection  is  the  ov^ner  of  the 
proceeds  when  collected  so  long  as  the  same  can  be  traced  speciti- 
cally.'  Where  an  agent  is  authorized  to  sell  property  for  not 
less  than  a  certain  sum,  it  has  been  held  that  a  complaint  in 
trover  for  doing  so  did  not  state  a  cause  of  action  supported 
by  the  proof;*  but  this  may  be  doubted.'  Where  a  creditor's  bill 
is  brought  against  husband  and  wife,  to  reach  real  estate  alleged 
to  have'^been  fraudulently  transferred  by  the  former  to  the  latter, 
if  the  wdie  die  after  issue  the  plaintiff  cannot  have  judgment  for 
the  interest  which  devolved,  upon  the  husband  by  the  death  of 

the  wife.*] 

But  a  complaint  defective  in  some  material  averments  may  be 
helped  on  the  trial,  and  the  variance  in  proof  disregarded  or  sup- 
plied by  amendment,  where  the  defective  allegation  is  supplied 
by  the  answer,  within  the  principle  of  the  late  case  of  BaU  v. 
Graham:;  in  the  court  of  appeals. 

A  material  variance  between  the  pleading  and  the  proof  is, 
as  we  have  seen,  defined  by  the  Code  to  be  one  which  has 
"actually  misled  the  adverse  party,  to  his  prejudice,  in  maintain- 
ing his  action  or  defense  upon  the  merits."  If  it  have  not  so 
mfsled  the  adverse  party,  it  may  be  amended  without  costs, 
or  disregarded.  Under  the  former  practice,  by  statute,  vari- 
ances which  could  be  amended  by  the  court  after  verdict  were 

.  Walter  v.  Bennett,  16  N.  Y.  251;  Jackson  v.   Anderson    4  T^^^*- J^j 

Field  V    Smm.  2   Rob.  38  ;  Palmer  v.  Kingman  v.  Eotahng,  3o  V\  «"Jl->;'^ ' 

i  rmJ^,  fMees.    &     Welsh.     283;  see  ^^^^V^^'^^^^'^V^^^'T's^lf  Y  99" 

Vtlerneld  v.  Ilolden,  4  Barn.  &  Cress.  5,  406  -Gordon  ^^..S!       83  L^i,    246  • 

10   Eng.    C.  L.  R.;   Jones  v.  Fort,  9  *  Moon  ^-   f'^f  *X  Tnhn.  7S 

^r->.?r-     ^=      '''''''''     "  ^^S^^'S'^'iKlSil- Allen. 

AusHa  y'liawdon,  44  id.  63;  Matter  ^)i^'^ ''.^'^  ^^f^'^,,T,  ^f  givJ    3  5     S 

.  of  Fie,  10  Abb.  410 ;  Seaman  v.   Low,  Harris  v.  ff'^f'^^tT^cUor)^^^^ 

/bosv^337;  i^.,..  v.  P....r,  ....  12  -^^'^l  W^!  6ia    "^^'^ 
"^A  V.  Merckants'  Bank,  1  Sandf.        ;  furtis  vFo.,  47  N.  Y.  299. 
498;    Ely  v.   ^rton,  3   Keyes,   397;        '1  Kern.  2o7. 
Fasley  v.  Crockford,    10    Biug.    243; 


644  AMENDMEISTTS.  [OH.  IX. 

[*826]  disregarded  upon  tlie  trial  of  a  cause,  *"  unless  sucia 
variance  or  mistake  be  calculated  to  surprise  and  mislead 
the  adverse  party,  and  to  prevent  his  making  due  preparation  for 
a  full  answer  on  the  merits  to  the  matter  concerning  which  such 
variance  or  mistake  shall  have  been  made.'"  But  the  statute 
contemplated  only  the  case  of  a  loritten  instrument  erroneously 
recited  or  referred  to,  or  where  a  mistake  occurred  in  the  name 
of  any  person  or  officer,  or  in  stating  any  day,  month  or  year,  or 
in  the  description  of  any  jpropertyi^  Yet,  it  was  said  that,  inde- 
pendent of  the  statute,  within  the  limits  thereof,  amendments 
might  be  made  at  the  trial,  of  most  variances  between  pleadings 
and  proofs,  where  the  action  was  founded  on  an  oral  contract  or 
wrong.^  These  limits  were,  that  the  variance  must  be  clerical  or 
unimportant,  and  the  court  must  be  satisfied  that  the  party 
objecting  has  not  been  surprised  and  misled  by  it,  or  prevented 
from  making  due  preparation  for  a  full  defense  on  the  merits.* 

There  is  a  marked  similarity  between  the  language  of  the 
statute  above  quoted,  and  that  of  the  Code.  The  Code,  however, 
is  more  definite  and  specific.  The  statute  says :  "  If  the  variance 
or  mistake  1)6  calculated  to  surprise  and  mislead,"  etc.  The  Code 
says :  "  Unless  it  have  actually  misled  the  adverse  party  to  his 
prejudice,"  etc.  Under  the  former  practice,  the  party 
[*827]  claiming  to  have  been  misled  by  the  ^variance  might  prove 
the  fact  to  the  court  by  his  own  oath  or  otherwise  if 
desirable ;  or  the  court  might  determine  the  question  from  the 
appearance  of  things  in  the  course  of  the  action.*  By  the  Code, 
a  mere  assertion  that  the  party  has  been  misled  by  a  variance 
will  not,  it  seems,  be  sufficient  to  defeat  an  amendment  upon 
terms,  unless  that  fact  "  he  proved  to  the  satisfaction  of  the  court," 
and  also,  in  what  respect  the  party  has  been  misled.  What  the 
nature  and  character  of  this,  proof  may  be  will,  of  course,  rest  much 
in  the  discretion  of  the  court.*  The  Code  seems  to  YQCimre  proof 
in  all  cases,^  but  it  does  not  appear  to  be  necessary  that  the  proof 

»  2R.R.page406,S^79;2Edm.St.423.  *  Lettman    v.    Ritz,  3    Sandf.   734; 

'  19  Wend.  542;  Cow.  &  Hill's  notes,  Cotheal  v.  Talmadge,  1  Smith's  Com. 

531,  532.  PI.  574.  See,  also,  'Catlin  v.  Ounter,  in 

3  15  Wend.  672,  673,  17  id.   113,  19  the  court  of  appeals,  10  How.  Pr.  316. 

Id.  542,  543.  in  which  thi.?sabjoct  is  discuPS'-d   and 

*  Cow.  Treat.  679,  690.  the   chanicres  introduced   by  thf;  Code 

*  [Gnf/ffs  V.  Howe,  '6  Keyes,  163.]  considered. 


SEC.  II.]  BETWEET^   PLEADINGS   AXD   PKOOF.  8^5 

elioulcl  be  always  sustained  by  tlie  oath  of  the  party ;  if  it  satisfac- 
torily appear  from  the  evidence  ah*eady  given,  and  the  facts  and  cir- 
cumstances which  already  appear  in  the  cause,  it  will  be  sufficient. 

It  may  be  furtlier  observed  under  this  head,  that  even  where  a 
case  is  not  properly  a  case  of  variance  under  the  Code,  yet  an 
amendment  may  be  made  to  reach  and  cure  the  defect  under  the 
last  clause  of  section  173,  "  when  the  amendment  does  not  cbauire 
substantially  the  claim  or  defense  by  conforming  the  pleading  or 
proceedings  to  the  facts  proved."  An  amendment  under  this 
provision,  it  will  be  seen,  is  limited  by  the  proviso  that  it  shall 
not  change  the  claim  or  defense.  As  to  what  will  be 
[*828]  regarded  as  a  "^change  of  the  claim  or  defense,  the  reader 
is  referred  to  what  was  said  in  the  preceding  section  of 
this  chapter.  If  the  plaintiff  state  fully  the  facts  of  his  case  and 
then  claim  legal  relief  when  his  proper  relief  is  equitable,  or  if  he 
claim  equitable  relief  when  his  cause  of  action  shows  him  to  be 
entitled  properly  to  legal  relief,  an  amendment  changing  the 
claim  for  relief  is  no  change  of  the  cause  of  action.  [If  the  party 
refuse  to  accept  the  terms  on  which  the  court  orders  amendments 
he  cannot  object  that  there  was  no  proof  the  party  was  misled,  nor 
to  the  terms.'] 

Immaterial  variances  may  be  disregarded  entirely  and  the  fact 
found  according  to  the  evidence,  or  the  court  may  order  an  im- 
mediate amendment  without  costs."  This  rule  was  substantially 
the  practice  before  the  Code.  Objections  of  a  technical  character 
were  of  a  class  which  the  court  was  in  the  habit  of  disregarding 
altoo'ether.  Judo-ment  was  ffiven  in  such  cases  without  waitinii: 
for  amendments  to  be  made.  If  an  amendment  were  deemed 
important,  the  party  was  left  to  apply  for  it  on  motion ;  and  sucli 
terms  were  imposed  as  were  thought  proper  when  the  motion  was 
made.'  A  similar  practice  still  prevails,  namely,  to  disregard  the 
variance  without  ordering  an  amendment,  leaving  the  party  to 
apply  for  it  on  motion,  if  he  deems  it  prudent.  And  it  is  held 
by  the  court  of  appeals  that  the  section  of  the  Code  on  the  sub- 
ject of  variances  is  applicable  even  to  cases  where  the  defense  of 
usury  is  set  up.* 

'  Ghiggs  v.  Howe,  3  Keyes,  1G6.  '  Depuyster  v.  WTieder,  1  Sandf.  719. 

« Code,  §  169 ;  Lobdell  v.  Lobdell,  36  N.  *  Duel  v.  Spencer,  1  Abb.  Pr.  237 ; 
Y.  330-1  iBabbett  v.  Young,  51  Barb.  406. 


846  AMENDMENTS.  [CH.  IX. 

[*829]  *Wliat  constitutes  an  immaterial  variance  which  may  be 
disregarded  on  the  trial,  it  is  not  so  easy  to  determine. 
The  Code  in  general  terms  defines  it  to  be  snch  as  shall  not 
"have  actually  misled  the  adverse  party  to  his  prejudice,  in 
maintaining  his  action  or  defense  on  the  merits."  Want  of  an 
allegation  material  to  the  cause  of  action  cannot  certainly  be 
disregarded  on  the  trial  if  proof  thereunder  be  then  objected 
to ;  and  if  so  disregarded  a  judgment  entered  thereon  would  be 
reversed  on  appeal,  because  the  complaint  does  not  show  facts 
sufficient  to  constitute  a  cause  of  action.'  But  where  the  com- 
plaint contains  sufficient  facts  to  sustain  the  action  or  the 
answer  sufficient  to  sustain  the  defense,  if  the  cause  of  action 
or  defense  be  substantially  proved,  the  failure  to  prove  certain 
allegations  precisely  as  laid  will  be  disregarded,  and  such 
variance  will  be  disregarded  even  on  appeal."  In  Lettman  v. 
Ritz^  where  the  complaint  in  slander  laid  the  words  in  English, 
and  on  the  trial  it  was  proved  that  they  were  spoken  in  German, 
the  court,  for  the  purposes  of  the  trial,  disregarded  the  variance, 
giving  the  plaintiif  liberty,  if  he  succeeded,  to  apply  for  an 
amendment  on  terms  after  the  trial. 

The  rule  that  the  allegata  and  the  probata  should  cor- 
[*830]  respond  was  more  strictly  enforced  *at  common  law,  and 
even  under  the  statute,  than  under  the  Code.  The  rule 
was  said  to  be  both  sound  in  principle,  and  well  established 
in  precedent.  Thus,  in  some  cases  at  common  law  immate- 
rial averments,  that  is,  averments  which  were  not  actually  im- 
pertinent as  surplusage,  must,  if  laid  in  the  declaration,  be 
proved.*  The  rule  is  stated  by  Mr.  Chitty  to  be,  that  everj 
allegation  in  an  inducement  which  is  material,  and  not  imperti- 
nent or  foreign  to  the  cause,  and  which  cannot  he  rejected  as 
surplusage^  must  be  proved  as  alleged,  and  the  rule  was  so 
adopted  by  the  supreme  court  under  the  former  practice  as  partic- 
ularly applicable   to  written  instruments.'     If,  it  was   said,  the 

Catlin    V.   Ounter,    1    Kern.  368;   10  is  made  between   an   immaterial  and 

How.  315.     See,  ante,  marg.  p.  825.  an  impertinent  averment.      The    one 

^  Luckey    v.   Frautcykee,  1   Smith's  mr??/ remain  in  the  pleadings,  the  other 

Com.  PI.  47.  will  be  struck  out.     This  distinction 

'  Union  India  Rubber  Co.  v.   Tom-  does  not  seem  to  be  recognized  undei 

Unson,  1  Smith's  Com.  PI.  364.  the  Code. 

3  3  Sandf.  734.  *  19  Johns.  66. 

*  Gould's  PI.  160,  164.     A  distinction 


BEC.  III.]       DEFECTIVE  TLEADINGR,    HOW   AIDED.  847 

averment   cannot  be   stricken   out   as   surplusage,  it  should  be 
strictly  stated  and  proved. 

Such  a  rule  cannot  now  be  properly  applied.  A  fiiilnre  to 
prove  an  immaterial  averment  cannot  in  general  be  a  material 
variance  at  the  trial,  within  the  meaning  of  the  Code,  and  will 
be  disregarded.  And  so,  too,  in  respect  to  facts  which  a  party 
may  but  which  he  need  not  allege,  as  if  he  aver  demand  of  pay- 
ment of  a  promissory  note,  or  account,  before  suit  brought ;  or, 
in  an  action  of  trespass  to  lands,  if  he  allege  that  the  defendant 

willfully  and  malicimisly  committed  the  trespass,  a 
[*831]  *variance  in  the  proof,  by  a  failure  to  prove  the  demand 

in  the  one  instance,  and  the  malice  in  the  other  will  be 
disregarded.  It  is  sufficient  if  the  substance  of  the  issue  is  proved. 
If  the  contract  given  in  evidence  agree  in  substance  and  legal 
effect  with  that  stated  in  the  declaration,  the  variance  will  not  be 
regarded. 

SECTION  III. 

DEFECTS  IN  PLEADING,  WHEN  AND  HOW  AIDED. 

A  defect  in  pleading  is  aided  by  the  Code  as  at  common  law, 
either  by  pleading  over,  by  presumption  after  verdict,  and  by  the 
statute  relative  to  amendments. 

1.  By  pleading  over.  —This  subject  has  been  already  incident- 
ally considered,  and  an  additional  remark  or  two  will  be  all  that 
can  be  necessary.  Section  144  '  specifies  the  causes  of  demurrer 
to  the  complaint,  if  apparent  on  the  face  of  the  pleading,  and  if 
not  so  apparent,  the  objection  is  to  be  taken  by  answer.  But 
if  the  objection  be  not  taken  by  demurrer  or  answer,  the 
[-832]  defendant  shall  be  deemed  "^  to  have  waived  the  same, 
except  only  the  objection  to  the  jurisdiction  of  the  court, 
and  the  objection  that  the  complain^  does  not  state  tacts  sufficient 
to  constitute  a  cause  of  action.* 

An  objection  to  the  jurisdiction,  it  has  been  before  remarked, 
may  be  taken  at  any  time.  Such  a  defect  can  never  l.)e  aided  by 
pleading  over. 

>  Cited,  ante,  pp.  G57,  658,  marg.  p.  '  Code,  §  148. 


848  AMENDMENTS.  [CH.  IX. 

Kor  under  the  Code,  as  under  the  old  system,  will  a  defect  in 
substance  in  the  complaint  be  impliedly  cured  by  the  mere  effect 
of  pleading  over.'  The  rule,  it  is  presumed,  applies  also  to  an 
answer  of  counter-claim  as  well  as  to  a  complaint.  If,  however, 
the  adverse  pleading  expressly  admit  the  fact  which  ought  to 
have  been  stated  in  the  defective  pleading,  and  which  is  substan- 
tially incorrect  in  omitting  it,  the  error  becomes  immaterial,  as  in 
the  instance  of  a  declaration  in  trespass  for  taking  goods,  omitting 
to  show  any  title  to,  or  possession  of  the  goods,  and  the  plea 
admits  the  defendant's  possession.'' 

2.  By  presumption  or  intendment  after  verdict.  —  The  court 
will,  after  verdict,  presume  or  intend  that  the  particular  thing 
w'hicli  appears  to  be  defectively  or  imperfectly  stated  or  omitted 
in  the  pleadings  was  duly  proved  on  the  trial.  It  is  to  be 
observed,  however,  that  this  is  not  to  be  taken  to  mean  that  the 
court  will,  by  intendment  after  verdict,  supply  material  facts  or 
allegations  in  the  complaint,  without  which  the  complaint 
[*833]  does  not  show  a  cause  of  *  action.  This  was  expressly 
held  otherwise  under  the  Code.'  Such  allegations  cannot 
be  presumed  to  have  been  proved.  But  it  seems  the  intendment 
after  verdict,  under  the  Code,  as  under  the  old  practice,  is  to  be 
confined  solely  to  such  allegations  as  can  he  implied  from  the 
allegations  on  record.  A  verdict  will  cure  a  defective  statement 
of  title^  but  will  never  cure  a  defective  title  or  cause  of  action.* 

It  seems,  too,  to  be  still  the  rule  that  such  intendment  cannot 
apply  to  the  case  of  a  judgment  on  default.  Where  there  has 
been  no  trial  or  verdict,  nothing  can  be  intended  or  p^'esumed  in 
favor  of  the  plaintiff.  The  judgment  admits  such  facts  only  as 
are  actually  alleged.*  A  plaintiff  by  the  Code  cannot,  on  default, 
take  any  greater  or  other  relief  than  that  demanded  in  his  com- 
plaint.* And  it  w^ould  certainly  seem  that  the  facts  which  he 
alleges  in  his  complaint  must,  of  themselves,  without  any  pre- 
sumption or  intendment,  show  him  entitled  to  that  relief  The 
rule,  however,  should  be  held  to  extend  only  to  substantial  defects, 

'  7  Barb.   S.  C.  585,  6  id.  557,  10  id.  ^  i  chit.  PI.  681,  and  see  cases  there 

321  [Stannard  v.  Eytinge,  5  Rob.  90,  3  cited. 

Abb.  N.  S.  42,  33  How.  262].  *  1  Saund.  228,  note  1. 

5  1  Chit.  PI.  672.  «  Code,  §  275. 

'  Rayner  v.   Clark,  7  Barb.   S.   C. 
81. 


SEC.  III.]       DEFECTIVE  PLEADIJS'GS,    HOW   AIDED,  849 

matters  of  substance,  and  not  of  form ;  otherwise  it  will  come 
within  that  class  of  defects  wliich  is  aided ; 

3.  By  the  statute  a/nd  Code  relative  to  amendments. — The  statute 

of  amendments  has  already  been  alluded  to  in  a  preceding 
[*834:]  part  of  this  chapter,'  and  *  it  is  unnecessary  in  this  place 

to  consider  its  provisions,  or  its  application  to  the  present 

practice.     If  not  abolished,  it  is  practically  superseded  by  the 

broader  and  more  general  provisions  of  the  Code  embodied  in 

section  176  : 

"  The  court  shall,  in  every  stage  of  an  action,  disregard  any  error 
or  defect  in  the  pleadings  or  proceedings  which  shall  not  affect  the 
substantial  rights  of  the  adverse  party ;  and  no  judgment  shall  be 
reversed  or  affected  by  reason  of  such  error  or  defect." 

This,  it  is  conceived,  not  only  embraces  in  a  single  proposition 
the  whole  of  the  statute  of  jeofails  and  amendments,  but  goes 
something  beyond,  and  may,  perhaps,  aid  cases  which  the  statute 
could  not  reach. 

It  furnishes  a  single  test  in  all  cases,  a  broad  and  universal  test, 
namely,  that  if  the  defect  is  such  as  in  the  opinion  of  the  court 
will  not  ^^  affect  the  substantial  rights  of  the  adverse  party,"  no 
matter  in  what  that  defect  shall  consist,  the  judgment  will  not  be 
reversed  or  affected  thereby.  It  is  but  applying  to  the  action,  in 
its  last  stages,  the  rule  which  the  Code  designs  to  govern  its  com- 
mencement, and  to  regulate  its  proceedings  throughout,  namely, 
that  the  action  is  to  be  stated,  tried  and  determined,  on  its  merits 
alone,  and  that  the  substantial  rights  of  the  parties,  and  they 
alone,  are  to  be  regarded  as  controlling  the  administration  of 
justice  under  the  forms  of  law.* 

»  Ante,  page  793,  m(wg.  p.  »  Stickney  v.  Blair,  5(1  Barb.  343  ; 

Wood  V.  Wood,  36  id.  359 

107 


ADDENDA. 


Abatement  and  revivor.  —  The  Code  has  not  changed  the 
rule  that  only  the  plaintiff  or  his  representatives  can  obtain  a 
revivor  unless  the  defendant,  or  his  representatives  have  acquired 
some  rights  in  the  litigation.  The  latter  may,  on  motion,  obtain 
a  revivor  where  a  counter-claim  has  been  interposed. 

Livermore  v.  Bainbridge,  49  N.  Y.  125. 

An  action  for  trespassing,  in  taking  and  carrying  away  personal 
property,  does  not  abate  by  the  death  of  the  defendant.  It  may 
be  revived  against  his  executor.  The  provisions  of  the  Revised 
Statutes,  as  to  such  actions  by  and  against  executors  and  adminis- 
trators, are  still  in  force.  If  one  of  several  defendants  die  it  may 
be  continued  as  a  separate  action  against  his  representatives. 

Eeinmuller  v.  Gray,  13  Abb.  N.  S.  299. 

Where,  before  judgment,  in  an  action  of  partition  one  of  the 
defendants  died,  and  the  case  proceeded  to  judgment  and  sale 
without  revivor,  held  the  proceedings  were  absolutely  void  as 

against  his  heirs. 
*  Requa  v.  Holmex,  16  N.  Y.  193 ;  S.  C,  on 

second  appeal,  26  N.  Y.  33S  ;  Washing- 
ton Ins.  Co.  V.  Slee,  2  Paige,  365  ;  See 
19  How.  430. 

If  a  druggist  negligently  sell  a  deadly  poison  as  and  for  a  harm- 
less medicine  to  A,  who  buys  it  to  administer  to  B,  and  gives  B  a 
dose  of  it  as  a  medicine,  from  which  he  dies  in  a  few  hours,  a 
right  of  action  in  tort  against  the  druggist  survives  to  B's  repre- 

Norton  V.  Seioall,  106  Mass.  143. 

Accord  and  satisfaction.  —  Where  the  treasurer  of  a  religious 

society  offered  to  take  §2,300  in  full  of  all  demands,  if  the  society 
would  raise  that  amount,  and  it  did  so,  held,  a  good  ac(;ord  and 
satisfaction.  ^^^^^  ^^  ^^^^^  ^^^^  ^^  ^^^^  ^^^ 


852  ADDE]S"DA.      • 

Agent.  —  A  bank  check  having  the  words  "  ^tna  Mills  " 
printed  on  the  margin  and  signed  "A.  B.,  treasurer,"  is  the  check 
of  the  ^tna  mills  and  not  of  A.  B. 

Carpenter  v.  FarnswortJi,  106  Mass.  561. 

The  powers  of  a  special  agent  are  limited  by  the  terms  in  which 
the  J  are  conferred,  and  must  be  strictly  pm-sued  ;  one  authorized 
by  telegraph  to  send  a  wrecking  vessel  cannot  assume  the  perils 
01  the  service  or  the  risk  of  the  voyage,  or  insure  against  the  neg- 
ligence of  those  handling  the  vessel. 

Martin  v.  Farnsicorth,  49  N.  T.  555. 

Who  gives  note  under  claim  money  is  for  ]Drincipal  but  uses 
for  his  own  purposes,  does  not  bind  principal  unless  has  express 
authority,  or  authority  may  be  implied  from  general  scope  of  his 
employment  or  from  some  custom  of  the  business. 

Hunt  V.  Chapin,  6  Lans.  139. 

Amendment.  —  A  court  may  refuse  to  set  aside  a  default  and 
permit  a  defendant  to  answer,  setting  up  the  defense  of  usury 
except  upon  condition  that  he  pay  the  amount  due  from  him  with 
the  legal  rate  of  interest  and  costs. 

Wd)er  V.  Zeimet,  27  Wis.  685. 

Animals.  —  One  who  keeps  an  animal  accustomed  to  attack  or 
bite  mankind,  with  knowledge  of  its  dangerous  propensities,  is 
jprima  facie  liable  to  one  attacked  and  injured  thereby  without 
proof  of  any  negligence  or  fault  in  the  securing  and  taking  care 
of  it.  The  gist  of  the  action  is  the  keeping  of  the  animal  after 
knowledge  of  its  mischievous  disposition.  A  complaint  which 
alleges  that  the  defendant  kept  a  certain  dog  accustomed,  to  his 
knowledge,  to  attack  and  bite  mankind,  and  carelessly  and  negli- 
gently suffered  said  dog  to  go  at  large,  and  while  so  at  large  he 
attacked  and  bit  the  plaintiff,  without  her  fault,  and  greatly  lacer- 
ated and  injured  her,  is  good. 

Parlow  V.  Haggerty,  35  Ind.  178. 

Arrest.  —  ISTo  action  lies  against  a  sheriff  for  arresting  a  person 
attending  court  as  a  witness,  although  it  be  alleged  that  the  defend- 
ant knew  he  was  privileged,  and  arrested  him  maliciously.     It  is 


ADDENDA.  853 

doubtful  whetlier  an  action  lies  for  detaining  such  a  person  after 

the  court  has  ordered  his  discharge. 

Bogers  v.  Burt,  Dav.  &  Mer.  653 ;  People 
V.  Campbell,  40  N.  Y.  133. 

Bailor  and  bailee.  —  Where  a  son  loaned  the  sulky  of  his 
father  to  B  to  drive,  and  while  doing  so  the  horse  ran  away  and 
broke  the  sulky  ;  Heldj  the  son  could  maintain  an  action  against 
the  borrower  to  recover  its  value,  and  such  recovery  could  be 
pleaded  in  bar  by  him  in  a  subsequent  suit  by  the  owner. 

Casey  v.  Suter,  36  Md.  1. 

If  the  bailor  instruct  the  bailee  not  to  deliver  the  property  ex- 
cept on  his  written  order,  a  delivery  to  the  wife  of  the  bailor  is 
unauthorized.  The  rule  that  the  husband  is  liable  for  the  torts 
of  the  wife  will  not  prevent  a  recovery. 

Komng  v.  Manly,  49  N.  T.  192. 

After  a  horse  is  exhausted  and  has  refused  its  feed  the  hirer  is 

bound  not  to  use  it. 

Bray  v.  Mayne,  Gow,  1. 

A  watchmaker  is  liable  for  a  watch  left  with  him  for  repairs, 

and  stolen  by  his  servant,  whom  he  allowed  to  sleep  in  the  shop 

where  the  watch  was  kept. 

Clarke  v.  EarnsTiaw,  Gow,  30. 

Banker.  — A  banker  holding  securities  in  pledge  for  a  debt 
is  bound  to  ordinary  care  and  diligence  in  their  safe  keeping. 
What  is  ordinary  care  varies  with  circumstances ;  the  value  of 
securities  in  the  bailee's  possession ;  the  opportunities  and  facili- 
ties for  abstracting  them;  the  facilities  for  burglary  between 
Saturday  and  Monday  ;  the  bailee's  knowledge  of  other  Sunday 
burglaries ;  the  precautions  generally  used  to  prevent  burglaries 
in  the  same  localities,  at  the  same  time,  are  all  proper  subjects  of 
inquiry  by  the  jury.  ^^^^^  ^^^ .^^^^  ^^^^  ^  ^^.^^^  ^  ^^.^ 

R.  68,  Sliarswood,  J.,  at  nisi  prius. 

Bankrupt  discharge.  —  If  obtained  so  late  that  it  cannot  be 
pleaded,  the  bankrupt  may  have  relief  on  motion. 

Monroe  v.  Upton,  6  Lans,  255. 


854  ADDENDA. 

Bona  fide  purchaser.  —  One  claiming  to  be,  cannot  show  he 
is,  without  pleading  the  facts  showing  he  is. 

Weaver  v.  Bardin,  49  N.  Y.  286. 

Bond  —  penalty.  —  In  an  action  on  an  administrator's  bond, 
upon  a  failure  to  render  an  account,  the  judgment  should  be  for , 
the  penalty  of  the  bond.     Execution  should  only  be  issued  for 
such  an  amount  as  may  be  found  due,  upon  an  accounting,  to 
the  party  in  whose  behalf  the  action  is  brought. 

Golden  v.  Littlejohn,  30  Wis.  344. 

Breach  of  promise.  —  It  is  no  defense  that  plaintiff  was 
married  at  the  time  of  the  promise,  if  the  plaintiff  was  ignorant 

thereof. 

Kelley  v.  Riley,  106  Mass.  339 ;  Blatt- 
macher  v.  Saal,  7  Abb.  409,  29  Barb. 
22;  Wylde  v.  Harris,  7  Com.  Bench, 
999,  8  N.  T.  Leg.  Obs.  71. 

In  the  latter  case  the  court,  by  dicta,  seems  to  be  divided  in 
opinion  on  the  question  whether  a  promise  by  a  married  man  to 
marry  another  woman  after  his  wife's  death  is  valid. 

Broker.  —  Cannot  revoke  general  agreement  to  buy,  hold  and 
sell  stocks  without  notice,  nor  can  he  buy  and  deliver  until 
authorized  by  employer.  If  he  does,  principal  may  recover  dif- 
ference between  the  unauthorized  purchase  and  market  value  at 

the  time  of  refusal. 

White  V.  Smith,  6  Lans.  5. 

Where  a  broker  engaged  to  sell  real  estate  procures  a  party 
willing  to  purchase  on  the  owner's  terms,  but  the  owner  refuses 
to  convey  to  such  party,  the  law  will  presume  that  the  person  so 
procured  was  solvent,  and  pecunianly  able  to  perform  the  con- 
tract he  offered  to  make. 

Ha/rt  V.  Hoffman,  44  How.  168,  Ct.  of  Ap. 

One  who  employs  a  broker  is  not  liable  to  him  for  his  com- 
missions, unless  he  be  the  efficieut  cause  of  the  sale.  The  owner 
may,  notwithstanding  such  employment,  himself  negotiate  a  sale 
of  the  property  or  of  any  parcel  thereof. 

MeClave  v.  Paine,  49  N,  Y.  561. 


ADDENDA.  855 

Where  A  was  the  agent  of  B  for  the  sale  of  certain  real  estate, 
and  C  knowing  of  the  agency  came  to  A  and  effected  an  exchange 
of  his  own  property  for  that  of  B,  held  that  A  could  not  charge 
C  for  his  services.  Where  A  was  the  agent  of  B  to  sell  certain 
real  property,  and  was  employed  by  C  afterward  to  dispose  of 
certain  real  property  for  him,  and  he  effected  an  exchange  of  the 
property  between  B  and  C,  held  that  A  could  not  charge  C  a 
commission  for  effecting  the  exchange. 

Simond  v.  Horn,  35  Ind.  413. 

If  a  broker  sell  stock  without  right  to  do  6o  the  owner  may 
charge  him  with  profits  realized  by  the  transaction  or  with  a 
conversion,  but  if  he  go  upon  the  latter  theory,  he  cannot  claim 
the  stock  is  undisposed  of  and  the  account  for  that  reason  closed. 

Taussig  v.  Hart.  49  N.  Y.  301. 

A  factor  is  bound  at  any  time  to  render  a  full  account  of  his 
doings.  If,  in  revocation  of  his  power  to  seU  personal  property, 
he  decline  to  state  the  amount  of  his  lien  for  advances  and  com- 
mission he  forfeits  his  Hen,  and  the  owner  may  maintain  replevin 

^^      ®  ^         *  Termlliger  v.  Seals.  6  Lans,  403. 

Where  an  action  by  a  broker  is  defended  on  the  ground  that 
he  had  also  received  a  commission  from  the  other  party  to  the 
sale,  if  the  court  leaves  it  to  the  jury  to  say  whether  the  case  falls 
within  an  exception  to  the  rule  that  one  cannot  act  for  both 
parties,  the  defendant,  if  he  desire  to  claim  the  court  erred,  must 

except  to  the  ruling. 

^  °  Eowe  V.  Stevens,  U  How.  10. 

Unless,  however,  it  be  shown  that  the  property  sold  has  been 
worth  more  than  the  amount  realized  on  the  sale  the  owner  can- 
not recover.  ^.^^^  ^  ^  .^^^  ^  ^^^^^  ^g^ 

Capacity  to  sue  — foreign  executor  or  trustee.  —  Objection 

to  want  of  by  plaintiff,  must  be  taken  by  answer,  unless  com- 
plaint shows  such  want.  A  foreign  receiver  or  trustee  may  sue 
in  another  State,  unless  such  recovery  would  prejudice  a  citizen 
thereof.  Sa/rday  v.  Quicksilver,  etc.,  6  Lans.  25, 


856  ADDENDA. 

Carrier.  —  A  carrier  must  deliver  the  property  to  the  con- 
signee, and  if  he  deliver  to  another,  after  giving  a  receipt  promis- 
ing to  deliver  to  the  consignee,  though  by  order  of  the  shipper, 
he  is  liable,  if  he  have  notice  of  facts  showing  the   consignee's 

rights. 

Bailey  v.  Hudson  River  B.  B.  Co.,  49 
N.  Y.  70. 

The  consignee,  after  notice  of  the  arrival  of  goods,  is  bound  to 
take  them  away  promptly.  He  cannot  wait  until  he  can  com- 
plete other  business. 

♦  Hedges  v.  Hudson  River  B.  B.,  49  N.  Y. 

223. 

If  two  connecting  carriers  occupy  the  same  warehouse,  delivery 

therein  by  the  first,  with  notice  to  the  second,  places  the  property 

at  the  risk  of  the  second. 

^tna  Ins.  Co.  v.  Wheeler,  49  N.  Y.  616. 

If  a  carrier  be  by  contract  exempt  from  liability  for  loss  or 
damage,  unless  the  same  be  proved  to  have  occurred  by  his  fraud 
or  gross  negligence,  in  an  action  against  him  the  onus  is  upon 
the  plaintiff  of  proving  such  fraud  or  negligence. 

Cochran  v.  Dinsmore,  49  N.  Y.  249. 

A  railroad  company  is  not  liable  for  injuries  resulting  in  not 

unloading  cattle  on  the  route,  if  not  guilty  of  negligence  or  a 

wrongful  act,  if  by  stipulation  it  is  not  bound  to  unload.     It  is 

the  duty  of  the  owner  or  his  agent,  and  not  of  the  company,  to 

unload  the  cattle. 

Penn  v.  Buffalo,  etc.,  49  N.  Y.  204. 

Cannot  warehouse  goods  until  he  has  made  due  effort  to  find 
the  consignee  and  notify  him  of  their  arrival.  If  he  has  not,  he 
is  liable  for  all  depreciation  before  notice,  although  not  for  any 
subsequent  thereto.  The  subsequent  failure  of  the  consignee 
does  not  render  it  a  case  of  concurring  negligence. 

Zinn  V.  Ifew  Jersey,  etc.,  49  N.  Y.  442. 

Although  the  first  carrier  contract  for  a  restricted  liability,  he 

is  not  the  shipper's  agent  to  make  such  a  contract  with  the  next ; 

the  latter  is  liable  as  at  common  law. 

Babcoek  v.  L.  S.  &  M.  8.  B.  R.  rio.,  49 
N.  Y.  491  ;  ^Jtna  Ins.  Co.  v.  Wheeler 
49  N.  Y.  616. 


ADDENDA.  857 

Otherwise  when  the  first  carrier  contracts  to  carry  beyond  its 
line. 

Maghee  v.  Camden,  45  N.  Y.  520 ;  jStna, 
etc.,  V.  Wheeler,  49  id.  620. 

Claim  and  delivery.  —  The  fact  that  the  plaintiff,  after  con- 
version by  the  defendant,  took  the  property  from  the  defendant's 
vendor,  is  not  admissible  in  mitigation  of  damages.  The  plaintiff 
in  such  case  may  show  that  the  defendant's  vendor  sued  him  for 
conversion,  and  recovered  the  value  of  the  property.  Such  facts 
rebut  every  inference  of  a  defense  by  the  defendant. 

Sprague  v,  McKemie,  63  Barb.  60. 

The  complaint  must  show  a  right  of  property  and  of  posses- 
sion in  the  plaintiff.  An  allegation  of  wrongful  detention  is  not 
sufficient.  The  latter  is  a  conclusion  of  law;  the  former  tlie 
fact  on  which  it  is  based.  The  facts  must  be  pleaded,  and  with- 
out them  the  conclusion  of  law  is  an  immaterial  statement.  An 
omission  to  allege  these  facts  in  the  complaint  is  not  cured  by  an 
averment  in  the  answer  denying  ownership  in  the  plaintiff. 
Where  the  plaintiff's  case  depends  upon  a  wrongful  detention, 
without  a  wrongful  taking,  an  averment  in  the  complaint  of  a 
demand  and  refusal  is  necessary. 

Schofield  V.  Whitelegge.  49  N.  Y.  259. 

Claim  to  real  property.  —  In  actions  to  determine  claims  to 
real  property,  the  same  right  to  amend  the  pleadings  exists  as  in 

anv  other  action. 

•^  Brown  v.  Leigh,  49  N.  Y.  78. 

A  complaint  to  determine  must  show  that  plaintiff  has  been  for 
three  years  in  possession  of  the  lands  or  tenements,  and  that  both 
plaintiff  and  defendant  claim  an  estate  therein  in  fee,  or  for  life, 
or  for  a  term  of  years  not  less  than  ten.  Where  the  only  alleg-a- 
tion  as  to  defendant's  claim  is  that  he  unjustly  claims  title  to  the 
premises  it  is  insufficient,  and  the  complaint  is  demurrable. 

Austin  V.  Goodrich.  49  N.  Y.  266 ;  Bai- 
ley V.  Southmck,  6  Lans.  356. 

Commission  merchant  or  factor.  —  Is  not  liable  to  tlic  holder 
of  a  draft  against  property  consigned  if  he  refuses  to  accept  the 
108 


858  ADDENDA. 

draft  but  sells  the  property  and  applies  it  on  an  existing  indebted- 
ness by  the  assignor. 

Exchange  Bank  v.  Bice,  107  Mass.  37. 

Mere  advances  made  by  a  factor,  whether  at  the  time  of  his 
employment  as  such  or  subsequently,  cannot  have  the  effect  of 
altering  the  revocable  nature  of  an  authority  to  sell,  unless  the 
advances  are  accompanied  by  an  agreement  that  the  authority 
shall  not  be  revocable.  Where  the  court  directed  the  jury  that  a 
factor  by  his  mere  relationship  as  such  did  not,  by  making  advances, 
acquire  any  right  in  derogation  of  the  rights  of  his  principal 
to  give  directions  as  to  the  time  and  manner  of  sale,  and  that  any 
such  right  on  the  part  of  the  factor  must  be  made  out  by  an  agree- 
ment which  might  be  inferred  from  the  evidence,  or  might  be 
implied  from  proof  of  usage ;  Held,  correct. 

De  Cormas  v.  Prost,  3  Moore's  Privy  C 
Cases  (N.  S.)  158. 

Consideration.  —  Where  the  contract  does  not,  on  its  face,  show 

a  good  consideration,  or  one  is  not  implied  by  law,  the  pleader 

must  set  out  thQ  facts  showing  a  valid  consideration.     If  the  facts 

set  out  show  "a  contract  void  by  the  statute  of  frauds,  the  pleading 

is  demurrable. 

People's  Bank  v.  Adams,  43  Vt.  195. 

A  note  given  on  sale  of  a  ferry  franchise  granted  by  a  munici- 
pal corporation  is  valid  although  the  grant  be  subsequently  held 

ultra  vires. 

Carpentier  v,  Minturn,  6  Lans,  56. 

Consignee.  —  The  consignee  is  presumptively  the  person  enti- 
tled to  recover  for  non-delivery  of  the  goods.  If  one  order  goods, 
and  they  be  sent  by  carrier,  he  may  recover  for  their  loss. 

Ihompson  V.  Fargo,  49  N.  T.  188. 

Consignors.  —  Where  the  carrier  delivers  a  bill  of  lading  to 
the  consignors  promising  to  deliver  the  goods  to  the  consignee, 
which  the  consignors  had  sent  to  the  consignee,  it  is  a  question 
for  the  jury  whether  the  goods  were  delivered  to  the  carriers  on 
the  risk  of  the  consignors  or  the  consignees,  and  also  whether 


ADDENDA.  859 

there  was  a  special  contract  between  the  consignors  and  consign- 
ees sufficient  to  enable  the  consignors  to  recover  in  the  action. 

Dunlop  V.  Lambert,  Mac  Lean  &  Robin- 
eon,  663. 

Corporation.  — The  owner  of  the  bonds  of  a  corporation,  secured 
bj  a  lien  upon  its  lands,  has  a  right  to  maintain  a  suit  to  prevent 
another  corporation  from  obtaining  such  lands  by  the  wrongful 
use  of  the  name  of  his  corporation.  In  choosing  between  proper 
and  legal  remedies  a  corporation  is  entitled  to  exercise  its  judg- 
ment, and  neither  a  stockholder  nor  a  creditor  can  maintain  an 
action  on  the  ground  that  the  method  adopted  was  not  the  best. 

Newby  v.  Oregon  Gent.  R.R.,  1  Sawyer,  64. 

Counter-claim.  —  A  defendant  may  interpose,  as  a  counter- 
claim, that  plaintiff,  as  his  partner,  has  in  his  hands  a  balance 
belonging  to  defendant  on  the  settlement  of  a  late  partnership. 

Glift  V.  Northrop,  6  Lans.  830. 

Parties.  —  "Where  necessary  parties  are  not  before  the  court, 
it  will  reverse  a  judgment  and  order  them  brought  in. 

Collins  V.  Collins,  6  Lans.  368. 

In  an  action  by  the  payee  against  the  accommodation  indorser 
of  a  note,  given  for  machinery  to  be  manufactured  for  the  maker, 
defendant  cannot,  in  law,  counter-claim  for  damages  to  the 
maker,  arising  out  of  the  defective  construction  of  such  machi- 
nery. If  the  answer  should  allege  that  the  maker  is  insolvent, 
and  that  it  is  necessary  for  the  protection  of  the  defendant  to 
have  the  benefit  of  such  counter-claim,  it  seems  that  the  court 
might  order  the  maker  to  be  brought  in  for  the  purpose  of  adju- 
dicating such  counter-claim.  But  an  averment  that  tlie  maker 
"  is  of  doubtful  responsibility "  for  a  demand  of  so  large  an 
amount  as  that  for  which  defendant  has  become  liable,  is  not 

sufficient. 

Hiner  v.  Neioton,  80  Wis.  610. 

In  a  suit  to  restrain  the  infringement  of  a  trade  mark,  defend- 
ant cannot  have  judgment  for  damages  from  plaintiff's  use 
thereof.     A  street  number  cannot  be  made  the  subject  of  a  trade 


860  ADDENDA. 

unless  the  party  appropriating  it  alone  occupies  the  building  so 

numbered. 

Qlen,  etc.,  v.  Hall,  6  Lans.  159. 

County  court.  —  The  supreme  court  of  the  United  States  has 
held  that,  under  a  provision  that  the  defendant  must  reside  in 
the  district  "  That  it  is  not  necessary  to  aver  on  the  record  that 
the  defendant  in  the  circuit  court  was  an  inhabitant  of  the  dis- 
trict, or  was  found  therein  at  the  time  of  serving  the  writ. 
When  the  defendant  appears,  without  taking  the  exception,  it  is 
an  admission  of  the  regularity  of  the  service. 

Grade  v.  Palmer,  8  Wheat.  699. 

Creditor's  bills.  —  It  has  been  held,  in   England,  that  the 

courts  in   that   country  have   jurisdiction   over  the  funds  of   a 

foreign  government  in  the  hands  of  its  agents. 

Larimere  v.  Morgan,  3  Eng.  R.  499 ;  L. 
R.,  7  Chy.  App.  550. 

The  docketing  of  a  judgment  renders  it  a  lien  against  real 
estate.  In  order  to  reach  real  estate  conveyed  in  fraud  of  a 
judgment  so  docketed,  it  is  not  necessary  to  allege  the  issuing 
of  an  execution. 

If  a  lien  on  property  can  only  be  effected  by  execution,  it 
must  be  made  to  appear  that  it  has  been  made  or  attempted  to 
be  made  subject  to  such  lien,  and  that  there  is  some  necessity  for 
asking  the  aid  of  a  court  of  equity.  The  complaint  must,  in 
such  case,  allege  that  an  execution  was  issued  to  the  county 
where  the  judgment  debtor  resided ;  an  allegation  that  it  was 
returned  nulla  lona  is  not  sufficient. 

Payne  v.  Sheldon,  63  Barb.  169. 

Custom.  —  Parties  are  presumed  to  contract  with  reference 
to  well  settled  continuous  and  uniform  custom,  if  not  unreasona- 
ble and  contrary  to  law.  If,  of  a  particular  trade  or  locality, 
such  presumption  is  not  conclusive  and  may  be  rebutted  by  proof 
of  one  of  the  contracting  parties  that  he  was  ignorant  of  such 

usao-e. 

Walls  V.  Bailey,  49  N.  T.  464. 


ADDENDA.  861 

A  custom  must  be  reasonable,  and  not  contrary  to  the  general 
pi'inciples  of  law.  A  usage  of  a  particular  trade  may  sometimes 
be  proved  in  order  to  show  that  the  parties  contracted  with 
reference  thereto.  In  such  case  it  must  be  shown  that  the  party 
against  whom  it  is  set  up  had  notice  thereof,  or  that  it  was  so 
long  continued  and  notorious  that  all  persons  may  be  presumed 
to  have  notice  thereof.  A  custom  that  a  mechanic  may  use  the 
remnants  of  his  customers'  goods  for  his  own  purpose  is  con- 
trary to  law  and  against  public  policy. 

Wadley  v.  Dams,  63  Barb.  500. 

Damages.  —  Estimated  profits  not  being  recoverable,  an  agent 
to  sell  on  commission  cannot,  on  being  discharged,  prove  profits 
by  proving  the  probable  amount  of  sales. 

Washburn  v.  Hiibbard,  6  Lans.  11. 

Defense.  —  If  the  defendant  wish  to  show,  by  way  of  defense, 
that  a  receiver,  in  supplementary  proceedings,  of  the  claim  in  suit 
has  been  appointed,  he  must  plead  that  fact.  That  fact  is  not 
admissible  to  show  the  demand  was  not  assigned  to  the  plaintiff. 

Brett  v.  First,  etc.,  63  Barb.  610. 

Demand. — Where  there  is  a  contract  to  convey  real  estate, 

without   fixing  the  time  for  a  delivery  of  the  conveyance,  a 

demand  thereof  before  suit  is  necessary,  and  the  complaint  must 

allege  such  demand. 

Mather  v.  Scales,  35  Ind,  1. 

Although  no  demand  is  necessary  in  an  action  against  a  wrong- 
doer, or  one  who  does  not  obtain  title  from  him  bona  fide,  yet, 
if  the  original  owner  can  reclaim  the  property  from  a  hona  fide 
purchaser,  it  can  be  done  only  after  demand,  and  a  reasonable 
time  to  comply  with  the  demand.  The  bringing  of  a  suit,  in 
such  case,  is  not  a  sufficient  demand.  A  purchaser  from  a 
fraudulent  vendee,  in  ordc  to  hold  the  property  against  the 
original  vendor,  must  be  a  purchaser  in  absolute  good  faith,  and 
for  value.  If  his  title  is  tainted  with  any  fraud,  the  court  will 
not  be  particular  to  inquire  into  its  generic  character.  It  is 
enough  that  he  is  not  an  honest  purchaser. 

Lynch  V.  Beecher,  88  Conn.  490. 


862  ADDENDA. 

Demurrer.  —  To  a  complaint  containing  two  counts  will  be 
overruled,  if  either  is  good.  If  the  allegations  are  not  definite 
and  certain,  the  remedy  is  not  bj  demurrer,  but  bj  motion  that 
they  be  made  so 

ndle  V.  Omaha  National,  etc.,  49  N.  Y.  626. 

Demurrage.  —  Can  only  be  recovered  on  proof  of  an  express 
contract.  The  default  or  negligence  of  the  consignee  is  not 
material,  unless  made  so  by  the  contract.  Where  the  contract 
provided  for  one  day's  detention  (Sundays  excepted),  for  every 
one  hundred  tons,  and  the  defendant  directed  the  carrier  to  take 
the  cargo  to  the  dock  of  a  railroad  company,  and  there  dis- 
charge it,  which  he  did  pursuant  to  the  requirements  of  the 
railroad  company  and  the  rules  of  the  dock  and  customs  of  the 
port,  and  in  so  doing  was  subjected  to  detention  and  delay: 
Held,  the  plaintiff  had  a  right  to  comply  with  such  rules  and 
customs,  the  defendants  were  liable  for  demurrage,  although  the 
captain  notified  them  of  the  arrival  of  his  vessel  on  Sunday, 
they  not  objecting  on  that  ground,  not  having  acted  on  such 
notice. 

Lake  v.  Ilurd,  38  Conn.  536. 

Denial. — An  answer  commencing  with  "the  defendant  for 
answer  says  he  denies,"  etc.,  is  a  good  denial. 

De  Espinosa  v.  Gregory,  40  Cal.  58. 

A  party  having  personal  knowledge  must  either  admit  or  deny 
positively.  In  such  cases  it  is  evasion  and  bad  pleading  to  say  in 
reference  to  specific  allegations  of  facts  which  the  party  is  bound 
to  know  that  "  he  has  not  sufficient  knowledge  or  information  to 
enable  him  to  form  a  belief  as  to  whether,  etc.,  and  he  there- 
fore denies  the  same." 

Wing  V.  Dugan,  8  Bush,  (Ky.)  583-4. 

Disaffirmance.  —  If  the  vendor  of  goods  bring  suit  against  a 
purchaser  from  the  vendee  for  converting  a  portion  of  the  goods, 
a  settlement  with  the  vendee  for  the  portion  of  the  goods  retained 
wiU  niDt  discliarge  the  purchaser  from  the  vendor. 

Einney  v.  Kiernan,4:9  N.  T.  164,  revers- 
ing 2  Lans.  492. 


ADDENDA.  863 

A  deed  of  seven-eiglitlis  of  certain  property,  and  notes,  the  con- 
sideration therefor,  were  left  in  escrow  to  he  delivered  when  a 
deed  of  the  other  eighth  was  obtained ;  without  obtaining  it  the 
o-rantor  procured  a  delivery  of  the  notes ;  the  grantee  entered 
into  possession  of  the  premises,  and,  after  knowledge  of  the 
fraud,  cut  timber  thereon ;  held  he  thereby  affirmed  the  contract, 

and  the  notes  were  valid. 

Lindsley  v.  Ferguson,  49  N.  T.  623. 

Dower.  —  A  widow  is  entitled  to  dower  in  lands  conveyed  by 
her  and  her  husband  in  fraud  of  his  creditors,  the  conveyance 
having  been  declared  fraudulent  for  that  reason. 

Malloney  v.  Horan,  49  N.  T.  111. 

Duress.  —  An  instrument  executed  in  part  performance  of  a 
plan  to  stifle  a  criminal  prosecution  is  void.  If  it  recite  that  it 
is  so  made,  parol  evidence  that  no  such  object  was  talked  of  or 

contemplated  is  inadmissible.  „  ..    ^   ,      «o  u   v  qq^: 

Bettinger  v.  Bnderibeeker,  63  Barb.  395. 

Easement.  —  One  who  purchases  a  lot  bounded  upon  a  street 
or  alley  acquires  a  right  to  an  easement  over  the  street  which 
cannot  be  recalled  and  which  is  not  lost  by  mere  non-user  although 
that  may  be  some  evidence  of  abandonment. 

Wiggins  v.  McCleary,  49  N.  Y.  846. 

Election  of  counts.  — If  the  objection  for  improper  joinder 
of  causes  of  action  be  not  raised  by  demurrer,  the  court  may 
refuse  to  compel  the  plaintiff  to  elect  at  the  trial. 

Oillett  V.  Borden,  6  Lans.  219. 

Exempt  property— justification.  — Although  an  officer  may 
defend  under  an  execution  valid  on  its  face,  yet  he  cannot  build 
up  a  title  upon  it  so  as  to  maintain  an  action  against  third  per- 
sons.    He  must  plead  and  show  a  valid  judgment. 

Bue  V.  Perry.  63  Barb.  40;  Earl  v. 
Camp,  16  "Wend.  5G3 ;  Parker  v. 
Walrod,  16  Wend.  514. 

But  the  party  claiming  adversely  to  the  officer  must  show  some 
title  in  himself  effective  as  against  the  defendant  in  the  execution. 

Parker  v.  Walrod,  16  Wend.  514. 


864  ADDENDA. 

The  rule  that  an  officer  may  justify  under  process  valid  on  its 
face  is  personal  to  the  officer,  and  is  one  of  protection  merely.  It 
affi)rds  no  shelter  to  the  wrong-doer,  under  color  of  whose  pro- 
cess he  is  called  upon  to  act. 

Earl  V,  Camp,  16  Wend.  563. 

A  purchaser  must  prove  a  valid  judgment  as  well  as  execution. 

Earl  V  Camp,  16  Wend.  563  ;  Yates  t. 
St  John,  13  Wend.  74 ;  Dane  v.  Mai- 
lory,  16  Barb.  46 ;  Carter  v.  Simpson, 
1  Johns.  535. 

So  in  ejectment  by  a  purchaser  of  real  estate. 

Jackson  v.  Hasbrouck,  13  Jolins.  313 ; 
Townsend  v.  Wesson,  4  Duer,  343. 

The  rule,  however,  does  not  apply  to  mesne  process  issued  by 
the  court,  or  an  officer,  acting  judicially,  for  in  such  case  the  pro- 
cess itself  involves  a  determination  that  there  is  just  cause  for  it. 

Ball  V.  Stryker,  37  N.  T.  604. 

Although  the  officer  in  such  case  must  prove  preliminary  pro- 
ceedings authorizing  the  issuing  of  the  process. 

Noble  V.  Holmes,  5  Hill,  194 ;  Rinchey  v. 
Stryker,  36  How.  80 ;  Van  Etten  v. 
Extrst,  6  Hill,  311. 

False  imprisonment.  —  A  complainant  is  not  hable,  although 
a  justice  erroneously  decide  there  is  probable  cause  for  the  arrest 
of  the  party  suspected.  A  warrant  is  a  protection,  although  it 
charge  the  crime  in  general  terms.  A  complainant  tvho  merely 
delivers  a  warrant,  he  believes  to  be  valid,  is  not  hable,  unless  he 
direct  the  arrest  of  the  party  charged. 

Lewis  V.  Rose,  6  Lans.  306. 

Finder.  —  The  finder  of  a  boat  which  is  adrift  is  entitled  to 
recover  of  the  owner,  who  has  taken  it,  the  necessary  expenses  of 
preserving  the  boat  while  in  his  possession. 

Chase  v.  Corcoran,  106  Mass.  386. 

Forged  check  or  paper. — Wliere  a  banker  indorses,  for  the 
benefit  of  a  customer,  two   parts   of  a  bill,  both   being   fully 


ADDENDA.  865 

stamped,  and  with  the  words  "  eight  days  "  written  suflBciently 
far  apart  for  the  insertion,  after  indorsement  of  the  letter  "y," 
such  parts  do  not  constitute  two  bills ;  there  is  no  negligence,  sucli 
as  to  disentitle  him  from  setting  up  the  alteration  as  a  defense  to 
an  action  on  the  bill ;  nor  is  he  estopped  from  taking  advantage 
of  a  fraudulent  sale  by  the  customer  of  the  two  parts  as  separate 

bills. 

The  Societe-General  v.  The  Metropolitan 
Bank,  21  Weekl.  Rep.  335,  C.  P. 

A  deed  purloined  from  the  grantor,  or  taken  without  his 
knowledge,  consent  or  acquiescence,  does  not  pass  the  title  even 
as  against  a  subsequent  purchaser  for  value  without  notice.  The 
grantor  may,  however,  be  guilty  of  such  negligence  in  leaving  a 
complete  deed,  fully  executed,  where  it  can  be  taken  by  the 
grantee  as  will  estop  him  as  against  a  honafide  purchaser;  but  he 
will  not  be  estopped  if  the  deed  be  not  completed,  as  not  being 
stamped,  so  that  the  grantee  cannot  avail  himself  of  it  without 
committing  a  forgery  as  well  as  theft. 

Tisher  v.  Beckwith,  30  Wis.  55. 

The  responsibility  of  the  drawee,  who  pays  a  forged  check,  for 
the  genuineness  olthe  drawer's  signature,  exists  only  in  favor  of 
one  who'^^y  %iV  own  fault  or  negligence,  contributed  to  the 
fraud  or  to  mislead  the  drawee ;  if  the  payee  took  the  check, 
drawn  payable  to  his  order,  from  a  stranger  or  other  third  per- 
son, without  inquiry,  although  in  good  faith  for  value,  and  gave 
it  currency  and  credit  by  indorsement  before  receiving  payment 
the  drawee  may  receive  back  the  money  paid. 

National  Bank  v.  Bangs,  106  Mass.  441. 

Former  suit.  —  In  cases  where  the  state  courts  and  the  fede- 
ral courts  have  co-ordinate  and  concurrent  jurisdiction  the  decis- 
ion of  the  courts  of  that  judicial  system  in  which  the  jurisdiction 
first  attaches  is  final  and  conclusive  on  the  parties. 

Stant.  V.  Steamboat  Ohio,  4  Am  Law 
Reff  (O  S )  49,  District  Court  Hamil- 
ton Co..  Ohio,  Bartley,  J. ;  Ex  parte. 
SifFord,  5  Am.  Law  Reg.  (0.  S.)  659. 
U.  S.  District  Court  Ohio  Dist.,  Lea- 

109  '^**'  ^- 


866  ADDENDA. 

The  recovery  of  a  judgment  against  a  ^rong-doer  for  inter- 
ference with  property,  and  payment  of  the  judgment,  passes  title 
to  the  property  by  relation,  as  of  the  time  of  the  conversion. 

Smith  V.  Smitli,  51  N.  H.  571. 

If  a  surety  be  sued,  and  notify  the  principal  of  such  suit,  he 

is  bound  by  the  judgment   therein,  although  it  be  in  a  foreign 

court. 

Konitzky  v.  Meyer,  49  N.  T.  572. 

Fraud.  —  "Where  a  vendor  of  feeble  intellect  sold  his  property 

to  a  creditor  for  an  inadequate  price,  the  court,  on  a  bill  filed  by 

his   heir  impeaching   the   transaction,    set   aside   the   sale,  but 

directed  the  deed  to  stand  as  security  for  moneys  actually  due  on 

the  footing  of  a  mortgage. 

Longmate  v.  Ledger,  2    Giffard,    157 ; 
Rohimon  v.  Stewart,  10  N.  Y.  190. 

Mere  inadequacy  of  price  is  insufficient,  of  itself,  to  vitiate  a 
sale  ;  but  where  there  is  weakness  in  the  mental  capacity  of  the 
vendor,  the  sale  cannot  be  sustained  in  a  court  of  equity,  unless 
the  vendor  has  been  adequately  protected  in  the  transaction. 

Longmate  v.  Ledger,  2  Giffard,  157. 

Mere  inadequacy  of  price  is  no  ground  to  set  aside  a  convey- 
ance ;  but  there  may  be  inadequacy  so  great  as  to  demonstrate 
some  gross  imposition  or  undue  influence,  and,  in  such  cases, 
courts  of  equity  should  interfere  on  satisfactory  grounds.  To 
warrant  such  interference  alone,  on  tlie  ground  of  inadequacy  of 
price,  it  should  be  such  as  to  shock  the  conscience,  and  amount, 
in  itself,  to  conclusive  evidence  of  fraud. 

Price  V.  Ma/rtin,  46  Miss.  489. 

"Where  a  suit  was  commenced  against  a  son  to  set  aside  a  deed 
from  his  father  on  account  of  fraud  and  undue  influence,  it  was 
held  that  proof  that  his  father  had  agreed,  if  he  would  stay 
and  work  for  him  during  his  life,  he  would  deed  him  the  farm, 
and  that  he  did  so,  is  a  good  defense.  As  the  defendant  could 
not,  in  any  other  manner,  obtain  compensation  for  his  services, 
the  court  will  not  set  aside  the  conveyar  ce. 

Canfield  v.  Fairbanks,  63  Barb.  461. 


ADDENDA.  867 

The  distance  of  time,  before  or  after  the  conveyance,  at  which 

the  condition  of  the  party  may  be  shown,  is  within  the  discretion 

of  the  court. 

White  V.  Graves,  107  Mass.  325. 

A  married  woman  cannot,  as  against  one  having  no  notice  of 

the  facts,  avoid  a  deed  given  to  bar  her  dower,  on  the  ground  that 

her  husband  fraudulently  induced  her  to  execute  it,  if  there  was 

no  duress. 

White  V,  Graves,  107  Mass.  325. 

Where,  in  an  action  upon  a  written  agreement,  the  oral  evi- 
dence disclosed  that  the  parties  to  the  action,  between  themselves, 
lixed  $450  as  the  sum  to  be  paid  by  the  defendant  as  rent  for  a 
stone  quarry,  untruly  for  the  purpose  of  obtaining  from  another 
person  a  portion  of  that  sum,  when,  as  between  themselves, 
$250  was  all  that  was  to  be  paid  by  the  defendant.  Held,  that 
if  this  was  true  it  was  a  fraud  which  a  pai-ty  was  not  allowed  to 

set  up  as  a  defense. 

Delamater  v.  Bush,  68  Barb.  168  ;  to  the 
same  effect,  Shaw  v.  Jeffrey,  13 
Moore's  P.  C.  433. 

Frauds,  statute  of.  — Where  the  plaintiff  sold  a  large  quan- 
tity of  property  at  auction,  and  defendant  bid  off  different  articles 
at  different  times  and  on  different  days,  it  was  held  an  entire  sale, 
and  that  delivery  and  acceptance  of  one  article  took  the  entire  sale 

out  of  the  statute. 

Jenness  v.  Wendell,  51  N.  H.  63. 

If  the  defendant  admit  the  contract  charged  in  the  complaint, 
without  pleading  the  statute  of  frauds,  he  cannot  defend  there- 

under 

Duffy  V.  0' Donovan,  46  N.T.  233,  236-7. 

(jift.  _  To  constitute  a  valid  gift  donatio  mortis  causa,  thi-ee 
things  are  necessary :  1.  It  must  be  made  with  a  view  to  the 
donor's  death.  2.  The  donor  must  die  of  that  ailment  or  peril. 
3.  There  must  be  a  delivery  ;  no  qualification  is  necessary  ;  the 
facts  may  be  found  from  surrounding  circumstances ;  delivering 
an  assignment  of  stocks  to  a  third  person,  to  be  delivered  to  the 
donee  on  the  donor's  death,  constitutes  a  valid  gift. 

Grymes  v.  Hone,  49  N.  Y.  17. 


Hb"8  ADDEISTDA. 

Goods  sold.  —  The  vendor  of  personal  property,  on  refusal  of 

the  purchaser  to  perform,  has  an  election  of  and  may  resort  to 

three  remedies:     1.  After  tendering  the  property,  and  giving 

the  buyer  a  reasonable  time  to  accept  and  pay  for  the  property, 

treat  the   contract  as   abandoned  and  the  property  as  his  own. 

2.  He  may  retain  the  possession  of  the  property  as  his  security  and 

sue  for  the  contract  price ;  when  that  is  collected  the  title  vests  in 

the  buyer.     3.  He  may  resell  the  property  upon  giving  notice  to 

the  vendee  of  his  intention  so  to  do ;  and,  after  applying  the  net 

proceeds  toward  payment  of  the  contract  price,  he  may  sue  the 

purchaser  for  any   balance  which  remains   unpaid.     If  more  is 

realized  than  is  due,  he  must  account  to  the  buyer  for  the  surplus. 

He  cannot,  however,  pursue  more  than  one  of  these  remedies. 

The  choice  between  them  having  been  once  made,  the  others  are 

gone  forever. 

Westfall  V.  Peacock,  63  Barb.  209. 

Guardian's  lease. — A  guardian  in  socage,  or  a  general  guard- 
ian, has  a  right  to  lease  his  ward's  lands  in  his  own  name.  For 
injuries  resulting  from  a  breach  of  covenant  in  the  lease,  the 
remedy  is  upon  the  instrument  itself.  Although  the  guardian 
has  no  right  to  sell  the  ward's  land,  yet,  under  a  contract  to  do 
so,  a  reversionary  interest  in  the  guardian,  after  the  expiration  of 
an  existing  lease,  during  his  ward's  minority,  may  pass  by  such 

an  agreement. 

Thacker  v.  Henderson,  63  Barb.  271. 

Guaranty.  —  A  became  security  for  B  to  secure  advances  to  B 
by  a  bank.  The  guaranty  provided,  that  it  was  "to  continue  in 
full  force  until  six  months  after  notice  to  the  manager  of  the  said 
banking  department,  in  writing,  under  my  (A's)  hand,  of  my 
intention  to  discontinue  or  determine  the  same."  A  died.  The 
bank  did  not  deny  that  it  knew  of  his  death.  It  continued  to 
make  advances  to  B.  Held,  that  the  notice  of  death  was  suffi- 
cient, and  that  this  was  not  a  continuing  guaranty,  enforcable 
against  the  executor,  but  that  it  determined  at  the  death  of  A. 

Harriss  v.  Fawcett,  28  Law  Times  Rep, 
(N.  S.)  182,  Rolls  court,  to  appear  in 
4th  or  5th  Eng.  Rep, 


ADDENDA.  869 

Highways.  —  A  commissioner  of  higliways,  with  funds,  or 
wlio  with  reasonable  diligence  could  obtain  them,  who,  having 
notice  of  a  defect  in  a  highway,  and  neglects  to  repair  it,  is  liable 
as  a  mere  individual.  The  action  cannot  be  continued  against 
his  successor.  His  official  character  is  only  important  to  establish 
the  official  obligation  which  he  has  violated. 

Lament  v.  Haight,  4A  How.  1. 

Where  the  owner  of  a  house  and  lot,  while  rebuilding,  kept  a 
portion  of  the  street  in  front  "  boarded  "  in  for  three  years,  thus 
obstructing  access  and  trade  to  plaintiff's  place  of  business,  held, 
that,  as  the  same  was  done  under  license  of  the  city  authorities, 

he  was  not  liable.  .  ^t  tj  r-n 

Bradbee  v.  Mayor,  etc.,  5  Scott,  N.  K.  <y. 

An  overseer  of  highways  has  no  right  to  turn  water  from  a 
highway  upon  the  lands  of  an  adjoining  owner,  if  it  would  not 
naturally  run  there,  and  is  liable  for  so  doing. 

Moran  v.  McClearns,  63  Barb.  185  ;  44 
How.  30. 

A  city  is  not  liable  for  the  act  of  its  street  superintendent  in 
cutting  a  ditch  under  one  of  its  streets,  and  thus  allowing  a  large 
quantity  of  water  to  flow  upon  the  plaintifl"s  premises.  ^  The 
rule  of  respondeat  superior  does  not  apply  to  the  acts  ot  such 

officers  of  cities.  „  „  .^     oo  o       on 

Judge  V.  City  of  Menden,  38  Conn.  90. 

Husband  and  wife.  — A  husband,  who  prosecuted  his  wife  to 
compel  her  to  find  sureties  to  keep  the  peace,  and  tailed  to  sus- 
tain the  charges  against  her,  is  liable  for  the  reasonable  fees  of 
attorneys  employed  by  her  to  defend  her  against  such  prosecution, 
on  the  ground  that  such  legal  services  were  necessaries. 

Warner  v.  Heidcn,  28  Wis.  517. 

Although  by  statute  a  judgment  against  the  husband  upon  the 
ante  nuptial  contract  of  his  wife  cannot  be  enforced  against  him, 
he  is,  nevertheless,  a  proper  party  defendant  to  such  a  suit. 

Cannon  v.  Grantham,  45  Miss.  89. 

The  liability  of  the  husband  for  a  wrongful  conversion  by 
the  wife  did  not  rest  upon  the  ground  that  he,  in  contemplation 


870  ADDENDA. 

of  law,  was  guilty  of  a  conversion,  but  resulted  from  the  inca- 
pacity of  the  wife  to  be  sued  without  her  husband.  A  liability 
against  both  is,  therefore,  no  answer  to  a  suit  on  a  liability  to  the 

husband  alone 

Kowing  v.  Mauly,  49  N.  T.  193,  discus- 
sing the  common-law  liability  of  the 
husband  for  acts  of  the  wife. 

Illegal  contract.  —  Where  two  parties  enter  into  a  contract 
of  partnership  to  do  an  act  contrary  to  public  policy,  the  agree- 
ment is  void ;  neither  can  recover  of  the  other. 

Marsh  v,  Russell,  3  Lans.  340 ;  Hoggan 
V.  Wardlow,  8  Brown's  Pari.  Cas. 
(Toml.  Ed.)  281 ;  Atcheson  v.  Mallon, 
43  N.  Y.  147. 

If  a  horse  be  hired  for  a  pleasure  drive  on  Sunday,  the  hiring 

is  illegal ;  but  if  the  bailee  drive  it  to  another  place  he  is  liable 

for  a  conversion  of  the  horse. 

Hall  V.  Corcoran,  107  Mass.  251. 

One  who  is  hired  by  another  to  attend  bar  and  sell  liquor 

contrary  to  law  cannot  recover,  though  he  perform  other  labor 

about  legal  business. 

Bixby  V.  Moore,  51  N.  H.  402. 

One  who  sells  liquor  to  be  carried  into  another  State,  and  sold 
contrary  to  law,  may  recover  therefor. 

Boothby  v.  Plaisted,  51  N.  H.  436. 

A  contract  void  in  part  is  void  in  toto,  and  the  holder  cannot 

apply  a  payment  upon  the  illegal  part  so  as  to  render  the  residue 

of  the  agreement  valid. 

Gammon  v.  Plaisted,  51  N,  H.  444.' 

Infant.  —  A  chattel  mortgage  by  an  infant  is  voidable,  and  an 

unconditional  sale  of  the  property  by  the  infant  avoids  it.     The 

mortgagee  is  liable  to  the  vendee  for  taking  the  property  under 

the  mortgage. 

Cliaxdn  v.  Shafer,  49  N.  T.  407. 

Wheie  the  defendant  in  a  judgment  paid  the  recovery  to  the 
plaintiif's  attorney,  the  plaintiff  being  an  infant  suing  by  ^/"O- 
chein  ami^  held  such  payment  and  a  satisfaction  by  the  attorney 
was  valid.     So,  it  seems  a  payment  to  the  prochein  ami, 

Baltimore,  etc.,  v.  Fit^atrick,  36  Md.  619 


ADDENDA.  871 


Injunction.  — An  actor   contracted  with  tlie  manager  of  a 
theater  to  play  at  his  theater   twelve  consecutive  nights,  com- 
mencing at  a  certain  day,  stipulating  that  he  should  he  at  liberty 
to  perform  (among   other   characters)  three  which  were   named, 
but  there  was  no  express  condition  that  he  should  not  perform 
elsewhere  during  the  twelve  nights.     On  the   approach  of  the 
day  he  declared  he  would  only   act  in   a  piece   which   could 
not  be  performed  at  the  theater,  and,  on  being  told  it  was  impos- 
sible, declared  he  would  not   act  at  all  for  the  manager,  and 
advertised  himself  to   act  at  another   theater.     Held,  that  an 
iniunction  might  be  granted  to  prevent  him  from  acting,  during 
the  twelve  nights,  at  any  other  theater  during  the  ordinary  hours 
at  which  the  manager's  theater  was  open  for  public  performance. 

Webster  v.  Billon,  6  Am.  Law  Reg  {0. 
S.)  174.  The  case  is  not  reported  in 
tlie  regular  Euglisli  reports. 

Montague  v.  Flocton,  21  Weekly  Rep. 
668,  to  appear  in  4th  or  5th  Eng.  Kep . 

One  wto  purchases  property,  movable  or  immovable,  witli 
notice  that  it  has  been  disposed  of  to  be  used  in  a  Pf  ;"1™- 
ner,  may  be  restrained  from  using  it  otherwise.  Under  certam 
circumstances,  as  where  the  moving  party  has  been  gmlty  of 
laches,  the  court,  however,  will  not  enforce  this  rule. 

Be  MMos  v.  CHbson,  4  De  O.  &  3.  2T6. 

An  injunction  staying  proceedings  under  the  ^^^^  ;^  ^^^^ 
lord  for  the  removal  of  a  tenant,  will  not  be  granted  unless  it 
appear  that  the  magistrate  has  no  jurisdiction,  or  that  the  pro- 
ceedings are  fraudulent  or  collusive. 

Sherman  v.  Wright,  49  N.  Y.  228. 

Inn-keeper. -Where  the  horse  of  a  guest  was  stabled  with 
an ler  hTsI  and  kiched  and  injured  ^^v  it,  held,  that  o^^^^ 
these  facts  raised  a  presumption  of  -gl^gonce  against  th^^^^  mn 
keener  he  mi-ht  defend  himself  by  showing  that  due  ca  e  naa 
Ksed,  fTr  he  would  not  be  liable  unless  guilty  of  negbgence. 

Xtmon  T.  Ohdmetey,  Dav.  &  M«r.  348. 

One  who  goes  to  an  inn  only  certain  days  in  a  week,  agreeing 
npora  certata  price  for  a  portion  of  what  he  has,  and  carnes  the 


572  ADDEN^DA. 

key  to  tlie  stall  in  wliicli  Ms  stallion  is  kept,  is  a  guest,  and  the 
inn-keeper  liable  as  such  for  the  horse  if  burned. 

Mowers  v.  Feihers,  6  Lans.  112. 

Insurance.  —  A  defense  that  the  contract  required  the  suit  to 

be  brought  within  a  time  specified,  and  that  it  was  not  so  brought, 

must  be  pleaded. 

Westcott  V.  Fargo,  6  Lans.  320. 

Interpleader.  —  A  reward  offered  may  be  apportioned,  upon 

equitable   principles,    among   several   parties,  as  the  court  may 

direct. 

Rea  V.  Smith  et  al.,  5  Am.  Law.  Reg. 
(0.  S.)  98,  Sup.  Ct.  of  Cincinnati. 

Intoxication.  —  A  lease  obtained  by  fraud  and  circumvention, 
from  a  person  in  a  state  of  intoxication,  is  void  in  equity. 

Butler  V.  MulvihUl,  1  Bligh,  187. 

Joinder  of  actions.  —  Plaintiff  cannot  join  a  cause  of  action 

against  representatives  of  a  deceased  trustee  and  the  survivor  for 

breach  of  trust  before  the  death  of  the  testator  or  intestate,  with 

a  claim  to  reach  the  trust  fund  remaining  in  the  hands  of  the 

survivor. 

Sortore  v.  Scott,  6  Lans.  271. 

Joint  debtors. — Executors  who,  at  the  request  of  the  testator, 
are  exempt  from  giving  sureties  on  their  bond,  but  have  joined 
in  a  joint  and  several  bond,  conditioned  that  they  shall  return  an 
inventory,  and  administer  according  to  law,  are  liable  for  each 
othei-'s  act,  as  to  all  assets  which  have  been  included  in  the 
inventory,  and  come  into  their  joint  possession. 

Ames  V.  Armstrong,  106  Mass.  15. 

Jurisdiction.  —  Where  the  court  has  jurisdiction  of  the  sub- 
ject-matter an  appearance  by  attorney  will  confer  jurisdiction  of 

the  person. 

McCormick  v.  Penn.  Oent.  R.  R.,  49  N, 
Y.  303. 

Courts  of  one  State  have,  of  actions  for  injuries  in  another, 
where  the  actions  arise  from  a  breach  of  contract. 

Liscomb  v.  New  Jersey,  etc.,  6  Lans.  76. 


ADDENDA.  873 

And  so  of  cases  arising  within  the  maritime  jurisdiction,  if 

actionable  at  common  law. 

Dougan  v.  Champlain,  etc.,  6  Lans.  430, 

Justification.  —  Where  a  party  justifies  under  process,  which 
has  been  set  aside,  it  is  necessary  for  the  plaintiff  to  show  it  was 
set  aside  for  irregularity,  and  not  because  it  was  erroneous  or 
should  not  have  been  granted  upon  the  merits. 

Prentice  v.  Harrison,  Dav.  &  Mer.  50. 

License.  —  One  who,  by  license,  enters  upon  lands  to  put  in 
crops,  under  an  agreement  that  he  shall  have  them,  may  recover 
therefor,  if  deprived  of  them.  So  a  vendee,  who  takes  possession 
and  puts  in  crops,  may  recover  therefor,  if  the  vendor  revokes 
the  contract,  because  invalid  by  reason  of  the  statute  of  frauds. 
The  statute  of  frauds  cannot  be  invoked  by  one  refusing  to  per- 
form, as  against  the  party  willing  to  perform,  so  far  as  the  con- 
tract has  been  executed. 

Harris  v.  Frink.  49  N.  T.  24. 

A  license  may  be  revoked  at  any  time,  when  it  will  furnish  no 
justification  for  subsequent  acts. 

BMsdell  V.  Portsmouth,  etc.,  51  N.  H.  483 

In  an  action  for  an  alleged  injury  for  inserting  joists  into 
plaintiff's  wall,  evidence  that  the  wall  was  so  used  by  him  in  the 
erection  of  an  adjoining  building,  is  not  admissible  under  the 
general  issue,  but,  if  so  offered,  is  admissible  in  mitigation  of 

amages.  Hamilton  v.  Windolf,  36  Md.  301. 

Lien.  — A  vendee  who  entered  into  possession  under  a  contract 
cannot  retain  possession  and  yet  avoid  payment  of  the  purchase- 
money,  on  the  ground  that  the  vendor  is  not  able  to  give  him  a  good 
title.  He  must  offer  to  rescind;  he  can  then  recover  by  way  of 
counter-claim  what  he  has  paid,  with  interest,  and  the  value  of  his 
improvements  less  the  value  of  his  use  and  occupation.  The 
court,  in  such  case,  may  determine  that  the  vendee  retain  pos- 
session until  the  amount  recovered  by  him  be  paid,  or  secured  to 
his  satisfaction  ;  or  the  court  may  compel  the  vendor  to  discharge 
110 


874  ADDENDA. 

a  lien,  or  to  allow  the  purchaser  to  applj  a  portion  of  the  pur- 
chase-money to  its  discharge. 

Mclndoe  v.  Morman,  26  Wis.  588. 

It  has  been  held  in  America  that  if  a  vessel  be  sunk  or  aban- 
doned at  sea,  or  in  a  navigable  river  where  the  tide  ebbs  and  flows, 
that  one  who  saves  the  vessel  or  cargo  is  entitled  to  salvage,  and 
has  a  lien  upon  the  cargo  or  vessel  therefor. 

Baker  v.  Hoag,  7  N.  Y.  555. 

Limitations^  statute  of.  —  The  statute  runs  against  a  mere 

indorser,  for  accommodation,  from  the  time  he  pays  the  note,  and 

not  from  the  time  the  note  becomes  due. 

Reynolds  v.  Doyle,  2  Scott  N.  R.  45; 
Barker  v.  Cassidy.  16  Barb.  177 ;  Bur- 
ton V.  Rutherford,  49  Mo.  255. 

^Notwithstanding  the  indorser  be  a  first  indorser,  and  be  com- 
pelled to  pay  to  a  second,  who  did  not  pay  until  the  statute  had 

nearly  run. 

Godfrey  v.  Rice,  59  Me.  308. 

So  where  one  becomes  liable  to  pay  a  sum  of  money  for  another. 

Stone  ▼.  Flack,  30  K  T.  64. 

And  this,  notwithstanding  the  surety  postpone  the  time  of 

payment  by  litigation. 

Considine  v,  Cormdine,  9  Irish  Law  Rep. 
400. 

The  same  rule  applies  as  between  two  principals  or  two  sure- 
ties, in  an  action  for  contribution. 

Sexton  V.  Sexton,  35  Ind.  88. 

But  if  the  payee  of  a  note  to  whom  it  is  negotiated  indorse  and 

transfer  it  and  be  charged,  his  cause  of  action  is  on  the  note 

and  not  for  money  paid,  and  the  statute  runs  from  the  time  the 

note  falls  due. 

Woodruff  ▼.  Moore,  8  Barb.  171. 

K  an  executor  to  whom  a  trust  is  given  by  the  will  refuses  to 
serve,  no  right  of  action  vests  in  him.  The  trust  devolves  upon 
the  supreme  court.  As  soon  as  that  court  appoints  a  trustee,  the 
statute  begins  to  run  from  the  appointment  and  qualification  of 


ADDENDA.  875 

the  trustee.     An  administrator  with  the  vrill  annexed  does  not 
become  vested  with  the  trust. 

Dunning  v.  Ocean  National,  etc.,  6  L&ns. 
296. 

K  one  of  two  joint  debtors  makes  a  payment  at  request  of  the 
other,  the  latter  is  bound  bj  it.  And  if  there  be  but  one  debt,  the 
payment  will  be  held  to  be  made  thereon,  although  the  debtor 
intended  the  money  should  go  to  another,  if  the  creditor  did  not 
know  that  fact  on  making  the  application  thereof! 

Pitts  V.  Hunt,  6  Lana.  146. 

A  payment  by  one  without  authority  will  take  the  debt  out  of 

the  statute  if  afterward  approved  by  the  debtor.     The  payment 

may  be  proved  in  the  same  manner  as  before  the  Code. 

First  National  Bank  v.  BaUou,  49  N.  Y. 
155. 

Limitations  of  another  State  are  no  defense. 

Carpentier  v.  Mintum,  6  Lans.  56. 

In  "Wisconsin  it  has  been  held  that  if  the  maker  of  a  note 
barred  by  the  statute  of  limitations  of  that  State,  residing  therein, 
be  cast  in  a  judgment,  on  a  warrant  of  attorney  given  with  a  note, 
in  another  State,  and  judgment  obtained  in  such  State  on  the 
theory  that,  by  the  lex  looij  the  action  is  not  barred,  the  courts  of 
Wisconsin  will  relieve  against  such  judgment  when  it  is  attempted 
to  be  enforced  in  the  latter  Stat-e,  and  will  restrain  the  judgment 
creditor  from  enforcing  or  attempting  to  enforce  it. 

Brown  v.  Parker,  28  Wis.  21. 

This  case,  however,  went  upon  the  theory  that  the  statute  of 
limitations  extinguishes  and  bars  the  debt,  and  did  not  merely 
operate  upon  the  remedy.  It  would  not  hold  good  in  States 
where  the  contrary  doctrine  obtains. 

Lost  bill  of  exchange  or  note.  —  An  allegation  that  a  note 
is  lost  is  supported  by  proof  that  it  was  destroyed  by  fire. 

McGregory  v.  McGregory,  107  Ma68.  543. 

Lnnatic.  —  To  support  an  action  for  conspiracy  in  issuing  a 
commission  of  lunacy,  malice  and  a  want  of  probable  cause  must 


876  ADDENDA. 

be  proved.  On  proof  of  a  total  want  of  probable  cause,  malice 
ruay  be  implied ;  but  although  express  malice  be  proved,  some 
slight  evidence  of  a  want  of  probable  cause  must  be  given. 

Turner  v.  Turner,  Gow,  20. 

Malicious  prosecution.  —  If  one  knowing  that  certain  acts  do 
not  constitute  a  crime,  or  where  he  supposing  they  would  consti- 
tute a  crime,  knows  they  were  not  done  by  the  party  he  charges, 
an  action  for  malicious  prosecution  lies.  If  one  knowing  another 
not  to  be  guilty  of  the  acts  charged,  procure  him  to  be  indicted, 
the  action  lies,  although  such  acts  would  not  constitute  a  crime. 
It  is  not  forgery  to  erase  a  receipt  of  payment  from  a  bond. 

Dennis  v.  Byan,  63  Barb.  145. 

A  discharge  and  acquittal  of  a  party  accused  of  crime  by  a 
magistrace,  after  an  examination  and  investigation  of  the  charge, 
is  jprima  facie  evidence  of  want  of  probable  cause. 

Stram  v.  Young,  36  Md.  246. 

In  Massachusetts  it  is  settled  that  the  entry  of  a  nqlle  prosequi 
is  not  a  sufficient  termination  of  the  former  prosecution  to  enable 
the  plaintiff  to  recover  therefor.  And  this  is  so  whether  the  offi- 
cer entering  it  has  or  has  not  authority  to  do  so. 

Coupal  V.  Ward,  106  Mass.  289. 

Married  woman.  —  It  has  been  held  in  Indiana  that,  where 
work  is  done  and  materials  furnished  at  a  husband's  request  for 
buildings  erected  on  the  real  estate  of  the  wife,  the  latter  is  not 
liable,  although  she  may  have  subsequently  signed  a  promissory 
note  for  such  work  and  materials ;  that  a  married  woman  may 
charge  her  separate  property  for  the  cost  of  such  improvements 
as  are  necessary  to  a  complete  and  full  enjoyment  thereof,  but  a 
husband  has  no  power  to  charge,  by  his  separate  contract,  the 
real  estate  of  his  wife. 

To  a  complaint  on  a  note  given  for  work  done  and  materials 
furnished  in  building  a  house  on  certain  real  estate,  and  to  enforce 
a  mechanic's  lien  for  such  work  and  materials,  an  answer  by  the 
defendant  that,  at  the  time  the  work  was  done  and  materials  fur- 
nished, and  the  note  given,  said  defendant  was  a  married  woman, 
and  said  real  estate  was  her  separate  property,  is  good  on  demur- 


ADDENDA.  877 

rer.  To  such  an  answer  the  plaintiff  shonld  reply  that  the  work 
done  and  materials  furnished  were  necessary  to  a  full  and  coin, 
plete  enjoyment  of  the  real  estate. 

Johnson  v.  Tutemiler,  85  Ind.  353. 

This  case  is  undoubtedly,  in  the  main,  sound  law,  but  we  think 
the  giving  of  the  note  by  the  wife  would  be  sufficient  evidence 
to  justify  a  jury  in  finding  that  the  husband  was  originally 
authorized  by  the  wife  to  contract  the  debt  as  her  agent.  In 
other  words,  that  it  would,  at  least,  prima  facie,  amount  to  a 
ratification  of  the  acts  of  the  husband  as  her  agent. 

Master  and  servant.  —  The  master  is  liable  to  the  servant 
for  injuries  from  the  want  of  ordinary  care  and  precaution  on 
the  part  of  the  master  in  the  selection  of  employees,  appliances 
and  machinery,  unless  the  servant  know  the  facts;  such  knowl- 
edge is  evidence  to  prove  contributory  negligence,  but  does  not 
show  the  same  as  matter  of  law. 

Laning  v.  N.  Y.  Cent.  R.  B.,  49  N.  Y.  531. 

A  master  may  maintain  an  action  against  one  who  induces  his 

servants  to  leave  his  employ  or  to  refuse  to  do  his  work,  whereby 

he  sustains  injury. 

Walker  v  Cronin,  107  Mass.  555. 

Money  had  and  received.  — Where  a  second  mortgagee  takes 
and  sells  the  mortgaged  property  with  the  consent  of  the  first, 
the  latter  cannot  maintain  an  action  for  the  conversion  of  the 
property,  although  such  consent  was  given  under  a  false  impres- 
sion as  to  the  respective  rights  of  the  parties  to  the  proceeds  of 
such  sale,  or  as  to  the  views  of  the  second  mortgagee  on  that  sub- 
ject, such  false  impression  not  having  been  created  by  fraud  on 
his  part.  The  distinction  between  an  action  ex  delicto  and  one 
ex  contractu  is  substantial,  and  not  merely  formal.  In  one  case 
an  execution  goes  against  property  and  the  person  ;  in  the  other 
against  property  only.  A  judgment  in  an  action  for  conversion 
will,  therefore,  be  reversed  for  erroneous  instruction,  although  the 
plaintiff  whould  have  been  entitled  to  a  judgment  for  the  same 
amount  in  an  action  for  money  had  and  received. 

Anderson  v.  Case,  28  Wis.  505. 
Be  Oraw  v.  Elmore,  50  N.  Y.  1. 


878  ADDENDA. 

PlaintiflP  employed  a  carman  who,  out  of  his  own  money,  paid 
advanced  charges,  and  plaintifi'  paid  him  without  knowledge  of 
such  payment.  Defendant's  agent  fraudulently  overstated  the 
advanced  charges.  Meld,  plaintiff  coidd  not  recover,  the  pay- 
ments not  having  been  made  with  his  money. 

WortJdngton  v.  JSf.   T.  Cent.   R.  B..  6 
Lans.  257. 

One  who   is   duly  elected,  but  who   is   kept   out  of  office  by 

another,  to  whom  the  certificate  is  given,  is  not  in  fault  for  not 

qualifying  antil  he  obtains  a  judgment  of  ouster.     He  may  recover 

the  entire  official  salary,  without  any  deduction  for  the  services 

of  the  incumbent,  or  for  what  he  himself  may  have  earned  while 

ousted.     The  salary  belongs  to  the  office  itself  without  regard  to 

the  personal  services  of  the  officer,  and  is  not  dependent  on  the 

amount  of  work  done,     Quere,  whether  deductions  can  be  made 

for  ofiice  rent,  or  where  specific  services  are  paid  for  only  as  they 

are  actually  performed  ? 

People  V.  Miller,  24  Mich.  458. 

Money  paid.  —  If  one  of  two  sureties  pays  half  the  amount  of 
a  note  he  may  recover  the  amount  so  paid,  although  the  other 
paid  the  other  half  and  has  recovered  it  in  an  action  on  the  note. 

McCrxegory  v.  McGregory,  107  Mass.  543. 

Multifariousness.  —  The  objection  of  multfariousness  to  a  bill 

in  equity  does  not  apply  where  there  is  a  common  liability  in  the 

defendants  and  a  common  though  a  co-extensive  interest  in  the 

complainants. 

Fiery  v.  Emmet,  36  Md.  465. 

Municipal  corporation.  —  Liable  to  suit  if  unnecessarily 
refuses  to  levy  tax,  though  claim  required  to  be  laid  before 
common  council  and  to  be  audited. 

Buck  V.  Lockport,  6  Lans.  251, 

Negative  pregnant.  —  Where  the  plaintiff,  by  his  complaint, 
makes  the  number  material,  as  when  he  has  a  right  to  deliver  not 
less  than  5,000,  and  not  more  than  6,000,  by  alleging  tender  of 
a  certain  number,  a  traverse  of  the  number  is  good. 

Smith  V.  Dixon,  2  Nev.  &  Perry,  1. 


ADDENDA.  879 

Negligence.  —  One  who,  without  communicating  the  facts, 
ships  materials  unmixed,  which,  when  mixed,  are  explosive,  is  lia- 
ble to  the  carrier  if  they  become  mixed,  and,  by  explosion,  cause 
injury  or  damage ;  but  the  consignee  would  not  be  liable. 

Boston,  etc.,  v.  Shanly,  107  Mass.  568. 

One  who,  for  his  own  purposes,  so  manages  his  lands  as  to  col- 
lect there  in  abnormal  quantities  anything  likely  to  do  mischief,  is 
prima  facie  liable  for  the  damages  consequent  upon  its  escape.  As 
when,  in  mining,  he  create  hollows  and  openings,  which  fill  with 
water,  which  passes  into  another's  mines  through  fissures  and 
cavities,  nothwithstanding  he  be  not  guilty  of  any  actual  negli- 
gence. 

Smith  V.  Fletcher,  3  Eng.  Rep.  422,  L. 

R.,  7  Exch.  305  ;  Fletcher  v.  Bylands, 

L.  R.,  3  H.  L.^80. 

A  person  building  a  dam  across  a  stream,  subject  to  extraordi- 
nary freshets,  is  bound  to  construct  it  to  resist  such  freshets, 
although  they  occur  only  once  in  several  years,  and  at  no  regular 

intervals. 

Oral/  V.  Harris,  107  Mass.  492. 

One  who  sets  and  keeps  a  fire  on  his  own  land,  negligently,  is 
liable  for  injury  done  by  its  direct  communication  to  his  neigh- 
bor's land,  whether  through  the  air  or  along  the  ground,  and 
whether  he  might  or  might  not  reasonably  have  anticipated  the 
particular  manner  and  direction  in  which  it  was  communicated. 
The  opinion  of  an  expert  that,  under  the  circumstances  described, 
it  was  not  probable  the  fire  would  spread  to  plaintiff's  land  is 

inadmissible. 

Higgins  v.  Dewey,  107  Mass.  494. 

Where  coals,  dropped  from  defendants'  engine,  set  fire  to  a 
tie,  which  communicated  the  fire  to  weeds,  grass  and  rubbish, 
from  which  it  spread  to  a  farm,  and  thence  on  plaintiff's  land,  held 
a  question  of  fact  for  the  jury,  whether  the  injury  was  a  probable 
consequence  of  the  negligent  acts  of  the  defendants. 

Webb  V.  Rome,  etc.,  R.  R.,  49  N.  Y.  420. 

If  one,  in  taking  down  his  house,  without  taking  due  and 
proper  care  and  precautions  to  prevent  it  from  filling  upon  and 


880  ADDENDA. 

against  liis  neiglibor's  liouse,  but,  by  reason  of  his  careless,  negli- 
gent, unskillfnl  and  improper  conduct,  and  for  want  of  due  and 
proper  precautions,  the  house  give  way,  and  fall  upon  the  neigh- 
bor's house,  he  is  liable  for  the  damages  resulting  therefrom. 

Davis  V.  Tlie  London,  etc.,  2  Scott,  N.  R. 

74;    Bradbee  v.    The  Mayor,  etc.,  5 

Scott's  N.  R.  79. 
Brooks  V.  Curtis,  50  N.  T.  639. 

One  who  negligently  leaves  a  loaded  truck  in  the  street  in 
such  a  condition  that  children  may  be  injured  thereby,  may  be 
held  liable  for  an  injury  inflicted  upon  a  child  by  another's  inter- 
ference with  the  truck. 

Lane  v.  Atlantic  Works,  107  Mass.  104. 

A  lady  who  steps  off  a  train  of  cars  moving  slowly,  is  not 

necessarily  guilty  df  negligence,  but  may  recover  for  any  injury 

sustained  by  her. 

Filer  v.  iV.  Y.  Cent.  B.  B..  49  N.  T.  47. 

But  one  who  persists  in  getting  upon  a  train  in  motion,  cannot 

recover,  if  injured,  by  a  stationary  object,  while  so  doing. 

BhilUps  V.  Bensselaer  and  Saratoga  B. 
B.,  49  N.  Y.  177. 

In  an  action  against  a  town  for  an  injury  received  by  a  traveler 

through  a  defect  in  a  highway,  the  fact  that  knowing  of  the 

defective  place  he  voluntarily  attempted  to  pass  it  is  not  conclusive 

of  a  want  of  due  care  on  his  part,  but  only  a  circumstance  for  the 

jury  in  determining  that  question. 

Lyman  v.  Inhabitants  of  Amherst,  107 
Mass.  389. 

So  it  is  not  necessarily  negligence  for  a  traveler  to  get  out  to 

pick  berries,  leaving  the  lines  in  the  hands  of  his  boy  twelve  years 

old. 

Britton  v.  Inhabitants,  107  Mass.  347. 

A  railway  company  is  liable  to  a  passenger  injured  when  alight- 
ing in  consequence  of  a  hole  in  the  floor  of  its  depot. 

I/iscomb  V.  Ifew  Jersey,  etc.,  6  Lans.  75. 

It  is  negligence  to  suddenly  and  without  signal  start  a  train 
of  cars  when  passengers  are  getting  on  or  off.  Passengers  should 
ordinarily  get  on  and  off  at  the  depot.     But  where  the  company 


ADDENDA.  881 

has  been  in  the  habit  of  receiving  and  discharging  passeno-crs  at 
other  places,  it  is  not  negligence  to  get  on  or  off  there  while  a 
train  is  standing. 

Keating  v.  N.  T.  Cent.,  etc.,  49  N.  T.  673. 

A  railroad  company  is  liable  if  a  horse  be  frightened  by  a  der- 
rick which  it  left  projecting  over  a  highway. 

Jones  V.  Housatonic,  etc.,  107  Mass.  261. 


So   the   owner   of  any   property   left   in   a  highway   for   an 

Judd  Y.  Fargo,  107  Mass.  264. 


unreasonable  length  of  time 


Although  a  railroad  company  is  not  liable  for  frightening  the 
horse  of  a  passer-by  with  the  whistle  of  an  engine,  proprietors  of 
factories  have  no  right  to  use  steam  whistles  in  their  factories,  so 
located,  of  such  a  character,  and  used  in  such  a  manner  as  to 
frighten  horses  of  ordinary  gentleness  when  passing  upon  a  high- 
way adjoining  their  land ;  and  they  are  responsible  for  an  injury 
caused  by  an  unnecessary  alarming  or  frightening  use  of  them. 
It  is  not  negligence  to  drive  a  horse  upon  a  highway,  in  the  course 
of  one's  business,  in  good  faith,  where  such  a  whistle  may  be 

unnecessarily  blown. 

Knight  v.  Goodyear,  etc.,  38  Conn.  438. 

The  coart  distinguishes  between  the  use  of  such  a  whistle  and 
the  use  of  whistles  upon  locomotives  by  saying  "  such  whistles 
are  necessary  upon  railroad  engines  to  frighten  horses  and  cattle 
that  may  stray  upon  the  road  in  front  of  the  engine  and  drive 
them  from  the  track.  They  are  also  necessary  to  give  notice  of 
the  approach  of  a  train  to  persons  about  to  cross  the  track  at  such 
a  distance  that  the  bell  cannot  be  heard.  In  these  and  other 
cases  their  use  upon  railroads  is  important  and  valuable,  and 
both  sanctioned  and  required  by  law.  •«■  *  *  Tliis  is  well 
understood;  and  the  owners  of  animals  which  have  not  become 
accustomed  to  whistles  are  bound  to  submit  to  the  necessities 
of  the  case,  and  if  they  drive  them  where  locomotive  wliistles 
are  liable  to  be  blown,  they  take  the  risk  upon  themselves,  and 
if  any  injury  results  they  can  have  no  redress.  But  the  rule 
should  be,  and  is,  different  in  respect  to  whistles  used  upon  facto- 
ries. Their  use  is  not  necessary  at  all." 
Ill 


882  ADDENDA. 

A  railway  company  is  liable  for  causing  the  death,  of  one 
walking  on  its  track,  provided  it  appear  that  the  accident  would 
not  have  occurred  if  the  agents  of  the  company  had  used, 
in  running  the  engine  which  occasioned  the  killing,  ordinary 
prudence  and  care  in  giving  usual  and  reasonable  signals  of  its 
approach,  and  in  keeping  a  reasonable  look  out.  In  considering 
the  question  of  ordinary  care  and  prudence  on  the  part  of  the 
person  killed,  the  jury  have  a  right  to  take  into  consideration, 
with  the  other  facts  in  the  case,  the  known  and  ordinary  disposi- 
tion of  men  to  guard  themselves  against  danger. 

Baltimore,  etc.,  v.  State,  36  Md.  366. 

In  an  action  against  a  ferryman  for  animals  drowned  in  conse- 
quence of  the  want  of  a  proper  barrier,  the  defendant  cannot 
show  that  no  accident  had  occurred  for  thirty  years.  Neither  is 
it  a  defense  that  the  animals  became  unmanageable  without  any 
known  or  apparent  cause;  nor  can  the  defendant  in  such  case 
require  the  court  to  charge  that  the  plaintiff  cannot  recover  if 
the  loss  was  occasioned  wholly  by  the  fault  of  the  mules. 

Lewis  V.  Smith,  107  Mass.  334. 

A  railroad  company  is  required  to  fence  a  culvert  so  cattle  will 

not  pass  through  it,  although  they  can  only  do  so  at  times  when 

the  water  is  low. 

Keliher  v.  Connecticut,  etc.,  107  Mass.  411. 

One  who  is  insured  by  an  accidental  policy  may  recover,  though 
injured  through  his  own  negligence. 

Champlain  v.  Railway,  etc.,  6  Lans.  71 

A  canal  contractor  is  liable  to  one  injured  by  defects  in  a 
bridge,  although  he  had  no  notice  of  the  defect,  if  by  the  exercise 
of  reasonable  diligence  he  could  have  discovered  it. 

Stack  V.  Bangs,  6  Lans.  363. 

New  matter. — Under  the  general  denial  the  defendant  can- 
not introduce  evidence  tending  to  show  a  defense  founded  upon 
new  matter,  but  such  only  as  tends  to  disprove  any  fact  that  the 
plaintiff  must  prove  to  sustain  the  case. 

Weave?-  v.  Burden,  49  N.  Y.  298. 


ADDENDA.  883 

Nuisance.  — To  maintain  an  action  to  abate  a  nuisance  plaintitf 
must  allege  that  he  is  the  owner  of  the  freehold  affected  by  the 
nuisance  at  the  time  when  the  several  acts  complained  of  are 
committed ;  and  the  action  must  be  against  the  owners  in  fee,  in 
cases  where  it  is  sought  to  abate  the  nuisance.  The  party  in  such 
case  is  entitled  to  a  perpetual  injunction,  restraining  defendants 
from  so  using  their  property  as  to  annoy  him  and  prevent  the 
enjoyment  of  his  premises,  and  for  damages  as  incidental  to  such 
equitable  relief.  Smoke,  gas  and  dust,  issuing  from  a  lime-kiln 
near  plaintiff's  residence,  which  renders  it  unfit  for  a  comfortable 
habitation,  and  which,  when  inhaled  by  persons  of  sensitive 
lungs,  were  alike  unpleasant  and  uncomfortable  as  well  as,  to 
some  extent,  detrimental  to  health,  are  a  nuisance.'  The  defend- 
ants have  no  right  thus  to  pollute  the  air  and  disturb  the  com- 
fortable occupation  and  enjoyment  of  his  premises  by  plaintiff. 

HutcMns  V.  Smith,  63  Barb.  251. 

Officer.  —  An  officer  cannot  maintain  an  action  against  a  party 

who  merely  tells  him  that  a  wrong  person,  of  the  same  name  as 

that  in  a  process,  is  the  defendant,  if  the  party  had  reasonable 

and  probable  cause  to  believe,  and  did  believe,  the  representation 

to  be  true. 

Collins  V.  Evans,  Dav.  &  Mer.    669,  re- 
versing S.  C,  Dav.  &  Mer.  73. 

Otherwise,  if  the  party  direct  and  require  the  sheriff  to  arrest 
such  person,  or  to  take  certain  property  as  the  property  of  the 
defendant,  for  then  the  sheriff  acts  as  the  mandatory  of  the 
party,  who  is  bound  to  protect  his  agent. 

Humphreys  v.  Pratt,  5  Bligh  (N,  S.)  154. 

Parent  and  cliild.  —  In  an  action  by  a  son-in-law  against  the 
executors  of  his  father-in-law,  he  cannot  recover,  if  it  appear  the 
father  came  to  his  house  as  a  visitor,  and  not  as  a  boarder. 

Snow  V.  Moore,  107  Mass.  512. 

The  relationship  between  a  father-in-law  and  son-in-law  is  not, 
of  itself,  sufficient  to  overcome  the  presumption  of  a  promise  to 
pay  for  services  in  nursing  and  taking  care  of  the  falher-iu-law 
by  liis  daughter,  the  wife  of  the  son-in-law. 


884  ADDENDA. 

Where,  on  the  death  of  his  wife,  the  father  asked  his  daughtei, 
the  plaintiff's  wife,  to  come  and  take  care  of  liim,  saying  she 
should  be  well  paid.  The  daughter  kept  the  house  for  eleven 
years,  until  the  father's  death.  In  an  action  against  his  adminis- 
trator by  the  husband  for  the  wife's  services,  the  court  charged 
that  if  the  jury  found  it  to  be  an  entire  contract,  not  completed 
till  the  father's  death,  the  statute  of  limitation  would  not  bar  any 
part  of  the  claim  till  six  years  after  the  death.     Held,  correct. 

Schoclc  V.  Garret,  69  Penn.  St.  144. 

Where  it  was  claimed  a  father  had  given  a  bond  in  payment 

for  board  and  care,  it  was  held  competent  to  show  his  declarations 

in  plaintiff's  absence,  showing  hard  feeling  on  his  part  toward 

the  plaintiff. 

BurMiolders,  ex'r,  v.  Plank,  69  Penn.  St. 
225. 

Parties.  —  A  plaintiff  may  have  part  of  the  relief  asked  for, 

although  he  cannot  have  the  remainder  because  of  the  non-joinder 

of  other  necessary  parties. 

Sortore  v,  Scott,  6  Lans.  271. 

Members  of  a  joint  stock  association  may  maintain  an  action 

against  the  same. 

WesGOtt  V.  Fargo,  6  Lans.  321. 

As,  on  the  one  hand,  a  plaintiff,  who  has  a  right  to  complain 
of  an  act  done  to  a  numerous  society  of  which  ho  is  a  member,  is 
entitled  to  sue  on  behalf  of  himself  and  all  others  similarly  inter- 
ested, though  no  other  may  wish  to  sue ;  so,  on  the  other  hand, 
although  there  are  a  hundred  who  wish,  and  are  entitled,  to  sue, 
still  if  they  sue  by  a  plaintiff  who  is  personally  precluded  from 
suing,  the  suit  cannot  proceed. 

Burt  V.  British,  etc.,  4  De  Gex  &  Jones, 
158 ;  see  note  to  Overend  Ourney  Co. 
V.  Gihhs,  3  Eng.  Rep.  28. 

Partition.  —  When  the  legal  title  is  not  in  dispute  a  suit  for 
partition  may  be  maintained,  although  the  eqtdtalle  title  is 
claimed  by  some  of  the  defendants  and  disputed  by  the  plaintiffs. 

Lamb  v.  Burbank,  1  Sawyer,  227. 


ADDENDA.  885 

Partnership.  —  If  a  sheriff,  by  virtue  of  an  execution  against 

one  partner,  levy  on  his  interest  in  the  partnei-ship  property,  and 

subsequently  receive  an  execution  against  all  the  partners,  the 

latter  is  the  prior  lien,  and  the  proceeds  of  the  sale  should  be  first 

applied  thereon. 

Eighth  National  Bank  v.  Fitch,  49  N.  T. 
539. 

The  rule  that  one  partner  may  bind  another  only  applies  to  a 
trading  or  business  of  a  commercial  nature.  It  has  no  application 
to  a  partnership  for  agricultural  purposes. 

Hunt  V.  CJia/pin,  6  Lans.  139. 

Performance.  —  Where  a  seller,  on  Saturday,  the  last  day  for 
performance,  at  half-past  eight  at  night,  tendered  and  offered  to 
deliver  to  the  buyer,  at  his  place  of  business,  ten  tons  of  oil,  there 
being  from  that  time  full  and  sufficient  time  before  midnight  lor 
the  plaintiff  to  deliver  and  the  defendant  to  examine,  weigh  and 
receive  into  his  possession  the  whole  ten  tons,  but  the  buyer 
refused  to  receive  the  oil  on  account  of  the  lateness  of  the  hour, 
the  tender  was,  in  the  absence  of  any  usage  of  trade  to  the  con- 
trary, held  good,  notwithstanding  that  hall-past  eight  o'clock  was 
a  late  hour  therefor,  and,  by  reason  of  its  lateness,  an  unreasona- 
ble and  improper  time  for  the  tender  and  delivery. 

Startup  V.  McDonald,  7  Scott's  X.  K. 
269,  6  Man.  &  Gr.  593,  Exchequer 
Chamber,  and  reversing  S.  C,  3  Scott's 
N.  R.  485. 

A  party  who  is  in  default,  so  he  is  not  entitled  to  specific  per- 
formance,  cannot  recover    back  what  he  has  paid    upon  the 

contract. 

Finch  V.  WaXker,  49  N.  Y.  9. 

The  vendor  must  deliver  the  entire  quantity  of  goods  con- 
tracted for  before  he  is  entitled  to  payment  for  any  portion 
delivered.  It  is  not  necessary  for  the  vendee,  in  an  action  for 
damages  against  the  vendor  for  neglecting  to  perform,  himself  to 
make  a  formal  demand  of  performance  and  tender  payment.  It 
is  sufficient  if  he  has  been  ready  and  willing  to  receive  and  pay 
therefor,  and  has  the  means  and  resources  at  command  with 

which  to  procure  the  money. 

•       Mount  V.  Lyon,  49  N.  Y.  552. 


886"  ADDENDA. 

Play.  —  The  assignee  of  a  plaj,  from  an  alien,  may  restrain  ita 

being  acted  by  one  who  attends  its  performance  at  the  assignee's 

theatre,  and  thus  obtains  the  same. 

Laura  Keene  v.  Wheatley  &  Clarke,  9 
Am.  Law  Reg.  (0.  S.)  38,  U.  S.  Circuit 
Court,  Cadwallader,  J.,  relative  to 
"  Our  American  Cousin." 

Pledge.  —  The  pledgee  cannot  sell  the  property  except  in  the 

manner  and  upon  the  notice  required  by  law.     If  he  do  he  is 

guilty  of  a  conversion.    "Where  the  owner  loaned  stock  to  another 

to  be  pledged  as  security  for  any  balance  on  stock  transactions, 

the  pledgee,  knowing  the  facts,  is  bound  to  preserve  the  rights 

of  such  owner. 

Porter  v.  Parks,  49  N.  Y.  564. 

A  bill  in  equity  to  redeem  stocks  may  be  maintained,  although 

the  defendant   has  sold   the  stocks.      In  case  it  is  out  of  his 

power  to  return  them,  the  court  may,  in  a  proper  case,  decree 

compensation. 

Merrill  v.  Houghton,  51  N.  H.  61. 

Postmaster.  —  If  the  clerk  of  a  postmaster,  by  mistake, 
receive  a  letter  to  be  sent  by  mail  as  a  registered  letter,  and,  on 
discovery  that  it  cannot  be  sent  as  a  registered  letter  to  the  place 
where  it  is  directed,  send  it  by  mail  unregistered  by  direction  of 
the  postmaster,  and  it  is  lost,  they  are  both  liable  for  its  value. 

Fitzgerald  v.  BurrUl,  106  Mass.  446. 

Prayer  for  relief. — The  relief  demanded  does  not  necessarily 

characterize  the  action  or  limit  the  party  in  respect  to  the  remedy 

which  he  may  have.     Though  the  plaintifi'  had  demanded  a  sum 

of  money  by  way  of  damages,  he  may  nevertheless  recover  the 

same  amount  by  way  of  equitable  relief,  if  the  facts  entitle  him 

thereto. 

Hale  V.  Omaha,  etc.,  49  N.  T.  626. 
Springer  v.  Dwyer,  50  N.  Y.  19. 

Promissory  notes. —  The  honajide  holder  of  a  bill  of  exchange 
or  promissory  note,  to  which,  as  between  maker  and  payee,  there 
is  a  good  defense,  is  entitled  to  be  protected  only  to  the  extent 
which  he  has  paid.  If  property  was  exchanged  for  it,  the  value 
of  such  property  may  be  shown  either  to  show  the  extent  to 


ADDENDA.  887 

which  plaintiff  is  entitled  to  he  protected,  or  to  show  want  of 

good  faith  in  the  purchase.     It  is  not  necessary  to  plead  such 

evidence  aflfirmativelj. 

Huffs  V,  Wagner,  63  Barb.  215 ;  Harger 
V.  Wilson,  id.  237 ;  Weaver  v.  Burden, 
49  N.  Y.  286. 

A  mere  deposit  of  a  note  as  a  collateral  security  or  pledge  does 
not  make  the  pledgee  a  hona  fide  holder,  and  any  defense  which 
would  be  valid  against  the  payee  may  be  interposed. 

Snow  V.  Fourth  National,  etc.,  7  Rob.  479. 

Protest.  —  A   bill   drawn   in    one   State  upon  a  resident  of 

another  is  a  foreign  bill.     The  rule  of  law  requiring  protest  of  a 

foreign  bill  is  wholly  founded  upon  the  custom  of  merchants,  and 

presentment  and  demand  may  be  made  by  a  clerk  of  the  notary, 

if  such  be  the  custom  at  the  place  of  protest.      The  act  of  1857 

only  abolishes  days  of  grace  upon  bills  which  are,  on  their  face^ 

payable  at  a  particular  time.     It  does  not  include  bills  payable 

on  their  face  in  months  or  years.     If  the  notary  be  instructed  as 

to  the  time  in  which  to  make  presentment  or  demand,  he  is  not 

liable,  although  it  be  not  the  day  on  which  the  same  is  b}'  law 

required  to  be  made. 

Commercial,  etc.,  v.  Varnum,  49  N  T.. 
269. 

Puis  darrien  continuance.  —  It  is  imperative  upon  the  court 
at  nisi  prius  to  receive  a  plea  puis  darrien  continuance.  It  can- 
not allow  the  case  to  go  on,  subject  to  objections  as  to  the  validity 
of  the  plea.     The  adverse  party  must  plead  or  demur  to  it. 

Atkinson  v.  Nesbitt,  BlnckJiam,  Brindaa 
and  Osborne,  134 ;  Prince  v.  Nicholson, 
1  Marsh.  70,  5  Taunt.  333 ;  Tosadl  v. 
Horslny,  3  Carr  &  Pavne,  372  ;  Paris 
V.  Salhdd.  3  Wil.  137  ;  Lovell  v.  East- 
off,  3  Term  R.  554 ;  Fitch  v.  Tonlinar, 
1  Stark.  62. 

Railroad.— A  husband  may  recover  for  the  jewelry  of  his 
wife,  lost  with  other  baggage.  Where,  while  the  passcnirer  was 
gone  for  tickets,  the  baggage  master  loaded  the  trunks  of  the 
passenger,  and  when  he  returned,  demanded  pay  for  extra  bag- 
gage, which  the  passenger  refused  to  pay,  and  demanded  hia 
trunks ;  held,  the  company  was  liable  for  his  refusal,  and  the  bag- 


888  ADDEISTDA. 

gage  Laving  been  taken  on  and  burned,  that  the  passenger  was 

entitled  to  recover  therefor. 

McCormick  v.  Penn.,  etc.,  49  N.  T.  303. 

A  passenger  must  demand  his  baggage  on  the  arrival  of  the 

train  on  which  he  goes,  and  it  is  transported.     He  has  no  right 

to  leave  it  over  Smiday,  and  hold  the  company  to  a  liability  as 

carriers. 

Jones  V.  Norwich,  etc.,  50  Barb.  193. 

But  the  carrier  is  bound  to  have  an  agent  on  hand  ready  to 

deliver  the  baggage  for  a  reasonable  time  after  the  arrival  of  the 

train. 

Dinining  v.  N.   T.  and  New  Haven  R. 
B.  49  N.  Y.  546. 

Promise.  —  Where  one  sells  property,  and  agrees  that  the 
vendee  may  pay  part  of  the  purchase-money  to  the  vendor's 
creditors,  without  any  agreement  by  the  purchaser  to  so  pay  it ; 
the  balance  unpaid  is  a  debt  due  the  vendor,  and  can  be  reached 
and  held  under  an  attachment  against  his  property. 

Zelley  v.  Babcock,  49  N.  Y.  318. 

Reasonable  time.  —  If  no  time  for  performance  is  fixed,  the 
law  declares  that  it  shall  be  made  within  a  reasonable  time, 
or  upon  request.  A  delay  of  three  years  after  request  is  such 
laches  as  will  bar  a  decree  for  specific  performance. 

Finch  V.  Parker,  49  N.  Y.  9. 

A  sealed  instrument  in  these  words :  "  Due  A,  $1071,  for  value 

received   which   I    hereby   promise    to   pay   whenever,    in    my 

opinion,  my  circumstances  will  be  such  as  to  enable  me  to  do  so," 

does  not  create  any  legal  obligation  which  can  be  enforced  by 

action,  although   it  be   alleged   that  the  circumstances  of  the 

obligor  are  such  as  to  enable  him  to  do  so. 

Nelson  v.  Von  Bonnhorst,  6  Am.  Law 
Reg.  (0.  S.)  151  Supreme  Court,  Penn. 

Reformation  of  contract.  —  If  the  vendor  intend  to  reserve 
a  certain  strip,  but,  by  mistake,  reserves  a  much  smaller  piece,  and 
the  vendee,  knowing  the  fact,  attempts  to  obtain  the  result  of  the 
mistake,  it  is  a  fraud  from  which  equity  will  relieve. 

Qillett  V.  Borden,  G  Lans.  219. 


ADDEliTDA.  889 

If  a  contract  oe  mistakenly  supposed  to  conform  to  a  prior 
agreement  therefor,  a  delaj,  in  an  honest  belief  that  the  construction 
is  as  intended,  although  disputed  by  the  other  side,  is  not  laches. 
The  mistake  should,  however,  be  shown  beyond  a  reasonable 
doubt. 

BtocJcbridge,  etc.,  v.  Hudson  River,  etc., 
107  Mass.  290. 

Rescission.  —  As  against  a  third  person  claiming  under  a 
fraudulent  vendee,  in  order  to  establish  a  rescission  of  the  con- 
tract of  sale,  it  is  not  necessary  to  prove  a  return  of  or  offer  to 
return  any  secm-ities  received  thereon,  if  the  vendee  refrain  from 
asserting  any  title  to  those  securities  founded  upon  the  original 

contract. 

Kinney  v.  Kiernan,  49  N.  T.  164,  revers- 
ing S.  C,  2  Lansing.  492. 

Reversioner.  —  Although  the  assignee  of  a  lease  cannot  re- 
cover for  an  injury  to  the  reversion,  yet,  when  the  assignee  is 
also  the  owner  of  the  reversion,  he  may  recover  for  such  injuries. 

Thacker  v.  Henderson,  63  Barb.  271. 

Reward.  —  If  several  persons  be  entitled  to  a  reward,  they 
must  all  sue  therefor.  But  a  demand  by  one  is  sufficient,  though 
not  expressly  made  on  behalf  of  all. 

Abbott  V.  Strafford,  51  N.  H.  148. 

A  public  officer  charged  with  the  duty  of  arresting  all  persons 
charged  with  or  suspected  of  crime,  cannot  claim  any  further  or 
other  remuneration  than  is  allowed  by  law.  Whenever  an  officer 
makes  an  arrest,  he  is  supposed  to  be  acting  in  his  official  capa- 
city; and  where  he  performs  the  duty  of  sheriff,  believing  he 
was  acting  within  the  authority  derived  from  law,  the  court  will 
not  allow  him  to  change  the  relation  and  assume  that  of  a  private 

individual. 

Bea  V.  Smith,  5  Am.  Law  Reg.  (O.  S.)  98, 
Superior  Court  of  Cincinnati. 

The  finder  of  lost  property  is  not  entitled  to  a  reward  for 
finding  it,  if  there  be  no  promise  of  such  reward  by  the  o^\^ler. 
The  finder  of  lost  property  cannot  use  it  Avithout  the  knowledge 
112 


890  ADDENDA. 

or  consent  of  the  owner;  to  remunerate  himself  for  the  troable 
and  expense  of  finding  and  taking  care  of  it. 

Watts  V.  Ward,  1  Oregon,  86. 

If  one  of  the  officers  of  a  hank  offer  a  reward  without  author- 
ity, the  directors,  knowing  thereof,  must  promptly  disaffirm  his 
action,  or  the  bank  will  be  liable  therefor. 

Kelsey  v.  National  Bank,  69  Penn.  St. 
426. 

Sale.  —  Where  goods,  delivered  "  on  sale  or  return,"  are  not 
returned  within  a  reasonable  time,  the  sale  of  the  goods  becomes 
absolute,  and  the  price  may  be  recovered  under  the  common 
count  for  goods  sold  and  delivered. 

Moss  V.  Sioeet,  16  Queen's  Bench,  493. 

In  this  case,  in  speaking  of  two  of  the  cases  to  the  contrary, 
Pattekson,  J.,  says :  "  This  opinion  (that  held  by  the  court)  is 
supported  by  the  whole  current  of  the  authorities,  so  far  as  I  am 
aware  of  them,  with  the  exception  of  Iley  v.  FranTcenstein 
(8  Scott's  N.  K.  839),  and  Lyons  v.  Barnes  (2  Stark.  N.  P.  39), 
which  in  some  recent  text  book  (Roscoe  on  Ev.  306,  8th  ed.)  is 
said,  I  think,  not  to  be  law.  *  *  There  must  have  been  some- 
thing peculiar  in  the  facts  of  Iley  v.  FranJcenstein,  or  it  must  be 
misreported.  It  seems  there  to  be  put  that  the  goods  were 
returnable  on  the  demand  of  the  seller,  if  the  vendee  did  not  sell 
them ;  and  it  is  stated  that  the  proper  form  of  action  would  have 
been  for  not  returning  the  goods  pursuant  to  the  contract." 
Coleridge,  J.,  said :  "  Our  judgmeut  is  consistent  both  with 
principle  and  the  authorities,  except  Iley  v.  Frankenstein,  which 
has  probably  been  misunderstood."  Wightman",  J.,  said:  "I 
cannot  help  thinking  that  there  must  have  been  some  misunder- 
standing with  regard  to  Iley  v.  Frankenstein" 

Under  a  contract  to  get  out  logs  and  deliver  them  at  a 
particular  place,  and  that  as  soon  as  so  deposited,  the  title  shall 
pass  to  the  buyer.  Such  a  deposit  passes  title  whether  the  vendor, 
at  the  time  of  the  deposit,  intended  to  pass  title  or  not. 

Morrow  v.  Campbell,  30  Wis.  90, 


ADDENDA.  891 

And  this,  though  the  vendor  be  required  to  afterward  scale  the 

°  Morrow  V  ijeed,  30  Wis.  81. 

In  cases  of  a  warranty  the  vendee  need  not  offer  to  return  the 
property,  but  may  rely  thereon.  And  where  the  seller  lulled 
the  buyer  into  using  the  article,  held,  he  could  not  object  that  the 
buyer  did  not  offer  to  return  the  property. 

Day  V.  Pool,  63  Barb.  506. 

On  an  executory  contract  of  sale  without  warranty,  express  or 
implied,  an  acceptance  by  the  vendee  after  examination  or  after 
an  opportunity  for  examination,  in  the  absence  of  fraud,  is  con- 
clusive of  an  assent  upon  his  part  that  the  property  is  of  the 
quality  contracted  for ;  but  where  the  acceptance  is  induced^  by 
artifice  or  fraud  of  the  vendor,  by  reason  of  which  an  examina- 
tion is  prevented  or  interfered  with,  the  acceptance  is  not  binding 
as  an  assent  to  the  quality,  and  the  vendee's  rights  are  unimpaired 

■^'  Dutchess  Co.  v.  Harding,  49  N.  T.  331. 

If  the  property  cannot  be  examined  without  great  inconvenience 
or  injury  thereto  until  used,  it  is  not  necessarily  a  defense  that 
the  buyer  did  not  promptly  examine  it. 

Atwater  v.  Clancy,  107  Mass.  369. 

Where  a  party  takes  a  reaper  and  mower  on  trial,  with  the 
understanding  that  if  it  suit  him  he  will  pay  the  price  demanded, 
and  if  it  do  not  he  will  return  it  to  the  place  whence  he  took  it, 
and  he  fails  to  return  it  or  give  any  notice  to  the  vendor  of  his  dis- 
satislaction  with  its  performance,  the  latter  is  justified  in  treating 
the  transaction  as  an  absolute  sale,  and  entitled  to  recover  the 

contract  price.  t,  or  \r^  ooo 

Spickler  v.  Marsh,  36  Md.  2Zi. 

If  an  order,  silent  as  to  price,  is  sent  to  a  dealer,  and  is  accepted, 
the  law  fixes  the  price  at  the  current  rate,  and  the  party  ordering 
is  equally  bound  as  if  the  price  had  been  stated  in  the  order.  If 
he  order  two  articles  to  be  mixed,  without  specifying  the  propor. 
tions,  the  dealer  has  a  right  to  compound  the  same  in  the  usua. 

'^^''''^'*-  Konitzky  v.  Meyer.  49  N.  Y.  571. 


892  ADDENDA. 

Although  on  a  sale  for  cash  the  vendor  is  not  bound  to  accept 
the  vendee's  note  in  payment,  yet  if  he  part  with  his  goods  without 
receiving  the  money,  so  as  to  waive  the  condition  that  payment 
shall  accompany  the  delivery  of  the  goods,  a  set-off  may  be  inter- 
posed. 

GutcJiess  V.  Daniels,  49  N.  T.  611. 

Secundum  allegata.  —  Where  a  defense  is  proven  without 

objection,  it  is  the  duty  of  the  referee  to  sustain  it,  though  no  such 

defense  is  set  up  in  the  answer. 

Brett  V.  First,  etc.,  63  Barb.  610. 

Seduction.  —  In  Tennessee  it  has  been  held  that  if  the  daughter 
lived  with  the  mother  before  and  at  the  time  the  child  was  born, 
performing  service  for  her,  the  mother  had  a  legal  right  to  main- 
tain an  action  on  the  case  for  the  seduction,  although  the  father,  who 
had  died  before  the  bhth  of  the  child,  was  living  at  the  time  of  the 

seduction. 

Parker  v.  Meech,  5  Am.  Law  Reg.  (0.  S.) 
493. 

Where  the  parent  allowed  his  daughter  to  sleep  with  the 
defendant,  according  to  a  custom  prevailing  in  that  part  of  the 
country  called  "  bundling,"  held  that  the  knowledge  of  the  parent 
amounted  to  connivance,  and  he  could  not  recover  for  the  daugh- 
ter's seduction. 

HoUis  V.  Wells,  5  Penn.  L.  J.  30 ;  Seager 
V.  SHgerland,  2  Cainea,  219. 

Set-off.  —  One  who  agrees  not  to  use  a  claim  in  his  favor  as  a 

set-off,  cannot  afterward  insist  upon  doing  so  contrary  to  such 

agreement. 

Gutchess  V.  Daniels,  49  N.  Y.  605. 

Slander.  —  To  say  of  a  man  that  he  has  the  venereal  disease 
is  actionable  without  proof  of  special  damages,  though  it  is  other- 
wise if  spoken  in  the  past  tense. 

Bloodworth  v.  Oray,  8  Scott's  N.  R.  9. 

Specific  performance.  —  Though  an  obligation  be  construed 
into  an  agreement  for  a  lien  instead  of  a  lien,  a  court  of  equity 
will  decree  specific  performance  thereof,  and  will  follow  the  avails 
of  tlie  property  and  enforce  such  lien  therefrom. 

Hale  V.  Omalia,  etc.,  49  ISI.  Y.  637. 


ADDENDA.  893 

An  agreement  for  three  lives  or  thirty-one  years,  is  one  which 
a  court  of  equity  will  specifically  enforce ;  the  mere  circumstance 
of  the  lives  not  having  been  named  in  the  agreement,  nor  of  its 
having  been  therein  provided,  by  whom  the  lives  were  to  be 
nominated  does  not  render  it  invalid,  provided  the  lives  nomina- 
ted by  the  party  seeking  performance  were  in  existence  when  the 
agreement  was  made,  and  the  party  comes  within  a  reasonable 
time  to  enforce  specific  performance. 

MtzgercUd  v.  Vicars,  2  Drury  &  Walsh. 
298. 

One  may  make  an  agreement  which  will  bind  him  legally  to  make 

a  particular  disposition  of  his  property  by  will.     A  court  of  equity 

will  decree  a  specific  performance  of  such  an  agreement,  although 

it  be  by  parol,  if  there  is  a  part  performance  of  such  a  character 

as,  upon  the  principles  recognized  by  the  court,  will  take  a  parol 

agreement  out  of  the  statute  of  frauds.     Although  a  party  has  a 

right  to  the  protection  of  the  court,  if  that  protection  cannot  be 

given  him  without  invading  the  rights  of  innocent  parties  its  aid 

will  be  refused. 

Johnson  v.  Hubbell,  4  Am.  Law  Reg.  (0. 
S.)  177  Court  of  Cliancery,  New  Jersey, 
Williamson,  Chancellor. 

It  has  been  held,  in  England,  by  the  House  of  Lords,  that  one 

may  be  decreed  specifically  to  perform  an  agreement  to  procure  a 

third  person  to  execute  a  lease,  where  he  made  the  agreement 

understandingly,  and  the  other  party  thereto  would  be  seriously 

injured  by  a  failure  to  perform. 

Bradshaw  v.  Sutton,  CoUes,  25. 

Where  the  vendor  conveyed  the  premises  he  had  agreed  to 
convey  to  the  plaintiff  to  a  third  person,  who  knew  the  facts,  it 
was  held  that  the  conveyance  to  such  grantee  was  fraudulent,  and 
he  would  be  compelled  to  convey  to  the  first  purchaser. 

Meld  V.  Boland,  1  Drury  &  Walsh,  87. 

The  specific  performance  of  a  contract  is  not  a  matter  of  right, 
but  of  sound  discretion.  Courts  will  not  decree  it  except  where 
it  would  be  strictly  equitable.  The  contract  of  a  guardian  will 
not  be  enforced  except  it  be  for  the  interest  of  the  infants. 

Sherman  v.  Wright,  49  N.  T.  227. 


894  ADDENDA. 

Although  the  court  may,  in  a  proper  case,  hold  time  not  to  be 
of  the  essence  of  the  contract,  yet  the  party  may  be  put  to  a 
strict  performance  by  his  adversary  being  ready  and  willing,  and 
tendering  and  demanding  performance.  Each  case  must  be 
determined  by  its  own  circumstances. 

Hubhel  V.  Van  Schoening,  49  N.  T.  326. 

The  party  seeking  performance  must  excuse  his  omission  of 

duty. 

Delavan  v.  Duncan,  49  N.  T.  485. 

But   the  party  desiring  performance  must  not  be  guilty  of 

laches. 

Feters  v.  Belaplain,  49  N.  Y.  363. 
Delavan  v.  Duncan,  id.  485. 

Stockliolders.  —  A  biU  was  filed  in  equity  by  stockholders  in 
a  manufacturing  company,  incorporated  under  the  general  incor- 
poration law,  against  other  shareholders,  for  the  purpose  of 
ascertaining  the  amount  of  capital  subscribed,  by  whom 
subscribed,  the  amount  paid  thereon,  by  whom  paid,  and  to 
enforce  the  payment  of  the  same  ;  to  ascertain  the  debts  of  the 
company,  for  the  payment  of  which  the  stockholders  were  liable, 
under  the  act  of  incorporation,  to  the  amount  of  capital  stock 
subscribed  by  them  respectively,  and  on  account  of  which  suits 
had  already  been  instituted  against  the  complainants,  and  to  com- 
pel a  ratable  contribution  by  all  of  the  stockholders  toward  the 
payment  of  the  same.  On  a  general  demurrer  to  the  bill,  it  was 
held : 

1st.  That  in  regard  to  the  several  matters  charged  in  the  bill, 
the  complainants  and  defendants  had  a  common  interest  and  a 
common  liability,  to  the  extent  of  their  individual  subscriptions, 
and  the  bill  therefore  was  not  multifarious. 

2d.  That  the  bill  having  alleged  that  the  entire  amount  of  the 
capital  stock  of  the  company  was  not  subscribed,  it  ought  to  have 
charged  that  the  several  stockholders,  and  defendants  had,  by 
their  participation  in  the  organization  of  the  company,  or  by 
other  acts,  waived  their  right  to  rely  upon  such  partial  sub- 
scription of  the  capital  stock  as  a  defense  to  their  liability,  and 
the  failure  to  so  charo^e  was  a  fatal  defect  in  the  bill. 


ADDENDA.  896 

3d.  That  the  corporation  ought  also  to  have  been  made  a  party 
to  the  suit. 

So  long  as  a  corporation  has  the  power  to  increase  its  subscrip- 
tions, to  call  in  more  capital,  and  resume  its  business,  the  mere 
alleo-ation  that  its  debts  are  largely  in  excess  of  its  assets,  and 
that  it  has  conveyed  its  property  in  trust  to  pay  the  same,  does 
not  warrant  a  court  of  equity  in  treating  it  as  ipso  facto  dissolved. 

Fiery  v.  Emmert,  36  Md.  464. 

When  a  majority  of  the  stockholders  of  a  company  vote  for 
and  authorize  the  directors  to  borrow  money  and  incur  a  debt,  a 
dissenting  stockholder,  on  behalf  of  himself  and  all  others  similarly 
interested  cannot  restrain  the  directors  from  borrowing  the  money. 

Nicols'  Case,  3  De  Gex  &  Jones,  387. 

It  seems  that  that  although  the  directors  of  a  company  may  be 
personally  liable  for  fraudulent  representations  in  a  circular  issued 
by  the  directors  as  to  the  value  of  its  stock,  the  company  itself  is 

not  liable  therefor. 

Nicols'  Case,  3  De  Gex  &  Jones,  387. 

Summons.  —  A  summons  must  be  subscribed  by  an  attorney, 
and  if  the  plaintiff  be  not  an  attorney,  it  is  not  sufficient  that  it 

is  subscribed  by  him  in  person. 

Johnston  v.  Winter,  6  Am.  Law  Times,  46; 
7  Abb.  Law  Jour.  135. 

«;^urety.  — A  bond,  perfect  upon  its  face,  apparently  duly  exe- 
cuted by  all  whose  names  appear  therein,  purporting  to  be  signed, 
sealed  and  delivered  by  the  several  obligors,  and  actually  de- 
livered by  the  principal  without  stipulation,  reservation  or  condi- 
tion, cannot  be  avoided  by  the  sureties  upon  the  ground  that  tliey 
6^'o-ned  it  upon  the  condition  tliat  it  should  not  be  delivered 
unless  it  should  be  executed  by  other  persons  who  did  not 
execute  it,  when  it  appears  that  the  obligee  had  no^  notice  ot 
such  condition,  and  nothing  to  put  him  upon  inquiry  as  to  the 
manner  of  its  execution,  and  also  that  he  has  been  induced  upon 
the  faith  of  such  bond  to  act  to  his  own  prejudice. 

State  V.  Peek,  63  Me.  284  ;  State  v.  Pep- 
per,  31  lud.  76,  8  Am.  L.  Reg.  (N.  S.) 
665. 


896  ADDENDA. 

So,  notwithstanding  the  principal  promise  the  surety,  he  will 
obtain  the  signature  of  another  before  delivery. 

York  Co.  V.  Brookes,  51  Me.  506. 

And  so,  though  one  be  induced  to  sign,  supposing  a  forged 

name  thereon  to  be  genuine,  the  obligee  being  ignorant  of  the 

circumstances. 

York  Co.  V.  Brookes,  51  Me.  506  ;  State  v 
Pepper,  31  Ind.  76,  8  Am.  L.  Reg.  (N 
S.)  665. 

If  the  forged  name  be  obliterated  before  delivery  of  the  bond, 
the  rights  of  the  obligors  therein  will  not  be  altered,  or  their 
liability  affected  thereby. 

York  Co.  V.  Brookes,  51  Me.  506. 

In  1841  an  officer  was  in  arrears  £5,000.  The  defendant 
became  his  surety  for  the  proper  discharge  of  his  duties  for  the 
year  1842,  and  the  payment  of  all  moneys  he  should  receive  after 
the  commencement  of  the  year  1842.  On  being  pressed  for  the 
balance  of  the  previous  year,  in  order  to  make  his  account  appear 
correct,  took  from  the  moneys  collected  in  1842,  £5,000,  and 
paid  that  sum  to  the  government  in  extinguishment  of  the  arrears 
for  1841.  In  an  action  against  the  defendant,  as  surety  for  1842, 
the  court  charged  the  jury  that  if  they  were  satisfied  that  the  sum 
of  £5,000  had  been  remitted  out  of  the  taxes  of  1842,  and 
that  the  principal  debtor,  the  officer,  had  not  assented  to  the  appro- 
priation of  that  amount  toward  the  payment  of  the  arrearg  of 
1841,  they  ought  to  find  for  the  defendant.  Held^  incorrect,  and 
the  judgment  reversed  on  the  ground  that  the  government  had  a 
right  to  appropriate  the  money  to  the  liquidation  of  the  arrears 
of  1841,  and  that  it  was  not  necessary  that  the  principal,  the  officer, 
should  assent  to  that  appropriation  ;  that  the  surety  was  bound  by 
the  appropriation  and  liable  on  his  bond  for  the  deficiency  of  the 

year  1842. 

Att'y  Oen'l  of  Jamaica  v.  Manderson,  6 
Moore's  Priv,  Council  Cas.  239. 

In  an  action  on  a  continuing  guaranty  of  the  honesty  of  a 
servant,  if  the  servant  be  guilty  of  dishonesty  to  the  knowledge 
of  the  employer  it  is  the  duty  of  the  latter  to  notify  the  surety 


ADDENDA. 


897 


thereof,  and  if  he  fail  to  do  so  the  surety  is  not  liable  for  a  subse- 
quent delalcation  by  the  servant. 

Philli'ps  V.  Foxall,  3  Eng.  Rep.  259  ;  L, 

K.  7  Q.  B.  666 ;  and  see  Moak'B  note. 

3  Eng.  Rep.  273. 

But  mere  neglect  of  the  employer  to  examine  into  the  correct- 
ness of  the  accounts  of  the  servant,  and  to  use  means  at  his  com- 
mand for  verifying  the  correctness  thereof,  is  no  defense. 

Black    V.   Ottoman  Bank,    15    Moore's 
Priv.  Council  Cas.  472. 

The  defense  that  one  signed  a  note  as  surety  is  personal,  and 
the  principal  of  the  note  cannot  interpose  it. 

Marshall  v.  Sloan,  36  Ark.  513. 

Any  material  change  in  the  terms  of  a  contract  discharges  the 
surety  Where  one  is  surety  on  a  contract  for  sales  on  commission 
he  is  not  liable  for  goods  consigned  to  the  principal  at  an  agreed 

P^^°®'  Wilson  V.  Edwards,  6  Lans.  134. 

If  the  debtor  obtain  a  satisfaction  by  false  statements,  or 
through  mistake  by  the  creditor,  the  surety  is  not  released,  in 
a  proper  case,  however,  relief  will  be  granted  the  creditor  on 
terms.  Scholefidd  v.  Templer,  4  De  G.  &  J.  429. 

SurTiTor.  -  The  representatives  of  a  surety  liable  jointly  only 
are  not  liable.  They  are  absolutely  discharged  both  in  law  and 
in  equity.  ^^^^^  ^  ^.^^^,^  49  n.  t.  385. 

The  rule  that  the  representatives  of  a  deceased  party  cannot 
be  iohied  with  the  survivor,  unless  the  latter  be  insolvent,  does 
not  apply  to  cases  against  trustees  for  a  breach  of  trust. 

Sortore  v.  Scott.  6  Lans.  271. 

Tax.  -  One  owning  a  farm  lying  in  two  towns  cannot  mamtain 
an  action  to  compel  the  collectors  to  -t-P>.-\'  ''f  ;7;t°u 
the  farm  in  one  of  the  towns,  for  he  knows  m  what  town  he 

taxable.  ^^^^  ^  j,^_  5  Lans.  163. 

113 


898  ADDENDA. 

One  who  pays  an  illegal  tax  without  protest  has  no  remedy 

except  to  appeal  to  the  justice  of  the  law-making  power. 

Shoemaker  v.  Board  of  Com'rs,  36  Ind. 
176. 

Tax  payer.  —  Money  illegally  collected  belongs  to  the  tax 

payers,  and  the  county  has  no  right  to  recover  it  from  the  State. 

The  county  can  only  recover  where  the  tax,  if  collected,  would 

belong  to  the  county. 

Shoemaker  v.  Board,  etc.,  36  Ind.  175. 

A  tax  payer  has  no  title,  as  such,  at  law  or  in  equity,  to  sue  on 
behalf  of  himself  and  other  tax  payers  similarly  interested  to 
restrain  a  misapplication  of  the  funds  collected  from  the  tax 
payers  and  belonging  to  the  corporation. 

Ewing  v.  Glasgow  Commissioners,  Mac- 
lean &  Robinson,  847. 

Morrison  v.  Glasgow  Commissioners, 
id.  868. 

In  Indiana  it  seems  a  tax  payer  may,  in  certain  cases,  maintain 
an  action  on  behalf  of  himself  and  all  others  similarly  situated 
and  interested,  to  restrain  the  collection  of  an  illegal  tax. 

Shoemaker  v.  Board,  etc.,  36  Ind.  175. 

Tenant  in  common.  —  One  tenant  in  common  cannot  so  use 
other  property  owned  by  him  as  to  acquire  an  easement  upon  the 
joint  property,  nor  can  he  convey  a  right  so  to  do  to  another. 

Crippen  v.  Morss,  49  N.  Y.  63. 

Tender.  —  One  who  has  purchased  and  paid  for  property  need 

not  tender  it  back  if  absolutely  worthless.     When  an  offer  to 

return  is  necessary,  it  may,  it  seems,  be  made  to  the  agent  who 

effected  the  sale  for  the  vendor. 

Stone  V.  Frost,  6  Lans.  440. 

Trade  mark.  —  A  court  of  equity  will  not,  in  a  contest 
between  persons  who  profess  to  be  manufacturers  of  quack  medi- 
cines, interfere  to  protect  the  use  of  trade  marks  by  injunction. 
A  complainant,  whose  business  is  imposition,  cannot  invoke  the 
aid  of  equity  against  a  piracy  of  his  trade  mark. 

Fowls  V.  Spear,  7  Penn.  Law  Jour.  176, 
4  Penn.  L.  J.  Rep.,  Kane,  J.,  U.  S.  Cir- 
cuit Court. 


ADDENDA.  89f> 

Trespass.  —  A  grantor,  who  reserves  clay  to  make  brick,  has 
no  right  to  destroy  the  lateral  support  of  the  portion  granted. 

Ryckman  v.  Oillis,  6  Lans.  79 ;  Ludlow 
V.  Hudson  River,  etc.,  6  Id.  128. 

If  the  agents  of  a  corporation  enter  the  lands  of  another  and 

take  materials  to  repair  its  road,  the  corporation  is  liable  for  the 

injury  and  for  any  injury  which  may  result  from  such  wrongful 

act. 

Hawks  V.  Inhabitants,  etc.,  107  Mass.  414. 

If  the  owner  of  a  house  having  a  party  wall  attempt  to  rebuild, 
he  must  shore  and  prop  up  such  wall  properly,  and  is  liable  for 
negligence  or  carelessness  in  not  so  doing. 

Bradbee  v.  Mayor  etc.,  5  Scott's  X.  R.  79. 

Where  goods  are  wrongfully  seized  by  a  sheriff  under  a  valid 

writ  of  ^.  fa.,  the  execution   creditor  does  not,  by  a  subsequent 

ratification,  only  become  liable  in  trespass  for  the  original  seizure. 

The  reason  is,  that  the  sheriff  acts  as  a  public  officer,  and  does  not 

act  or  assume  to  act  as  the  agent  of  the  judgment  creditor.     The 

doctrine  of  ratification  of  the  acts  of  an  agent  does  not,  therefore, 

apply. 

Wilson  V.  Tummon,  6  Scott's  N.  R.  894, 
6  Man.  &  Gr.  236  ;  Brook  v.  Hook,  L.  R. 
6Exch.96. 

The  owner  of  cattle  who  hires  them  to  another  with  his  farm 

for  a  year,  is  not  liable  for  an  injury  done  by  them  although  the 

lessee  is. 

Vanslyck  v.  Snell,  6  Lans.  302. 

The  owner  of  property  illegally  sold  for  a  tax  does  not  waive  a 
right  of  action  for  the  conversion,  by  accepting  the  surplus. 

Westfall  V.  Preston,  49  N.  T.  349. 

Where  allegations  of  breaking  and  entering  plaintiff's  close 
are,  in  terms,  charged  on  the  face  of  the  complaint,  but  the  facts 
showing  a  different  cause  of  action  are  clearly  proved,  the  court  may 
amend  the  complaint  by  striking  out  the  allegations  as  to  the  break- 

iner  and  entry. 
^  -^  Moran  v.  McCleams,  63  Barb.  185. 44 

How.  36. 


900  ADDENDA. 

In  trespass  for  breaking  and  entering  a  yard,  held  a  valid  defense 
that  the  party  went  there  for  the  pui-pose  of  viewing  a  mare  belong- 
ing to  him  which  had  been  recently  stolen  from  him,  and  was  then 

in  a  stable  within  the  yard. 

Webb  V.  Beavan,  7  Scott's  N.  R.  936. 

But  if  the  stolen  property  were  not,  in  fact,  within  the  close 
entered,  the  party  must  plead  facts  showing  that  he  had  reasona- 
ble grounds  for  suspicion  that  it  was  there. 

2  Roll.  565  1.  15,  cited  in  note  to  Webb  v. 
Scott,  7  Scott's  N.  R.  937. 

One  who  drives  a  trespassing  animal  into  the  highway,  is  not 

liable  for  its  conversion. 

Wilson  V.  McLaughlin,  107  Mass.  587. 

TrOYCr.  —  By  mistake  a  carrier  delivered  a  lot  of  hides  to  the 
defendant.  Before  he  used  them  he  was  notified  the  hides  were 
claimed  by  another,  but  no  proof  of  ownership  was  offered. 
Heldy  defendant  was  liable  for  a  conversion  of  the  hides,  notwith- 
standing no  proof  that  the  hides  were  not  defendant's  was  offered. 

Cheshire  R.  R.  Co.  v.  Foster,  51  N.  H. 
490. 

Where  A  placed  certain  moneys  he  had  stolen  in  the  hands  of 

B,  as  a  depositary,  and  B,  afterward,  not  knowing  it  had  been 
stolen,  delivered  the  money  to  0  to  give  it  to  A,  it  was  held  that 
the  owner,  in  an  action  against  B  for  a  conversion  of  the  money, 
could  not  require  the  court  to  charge  that,  if  the  defendant,  when 
she  received  the  money,  or  at  any  time  before  she  delivered  it  to 

C,  had  reasonable  or  probable  cause  to  believe  either  that  it  was 
stolen  or  A  came  improperly  or  dishonestly  by  it,  or  that  it  did 
not  honestly  belong  to  him,  then  she  was  guilty  of  a  tortious  con- 
version ;  that  the  true  rule  was,  that,  if  the  defendant,  when  she 
delivered  the  money  to  C  to  be  by  him  given  to  A,  knew  that  it 
had  been  stolen,  then  such  delivery  was  a  tortious  conversion  by 
her  ;  but  that  a  suspicion  on  her  part,  even  if  founded  on  reason- 
able or  probable  cause,  that  the  money  had  been  stolen  by  A,  was 
not  sufficient  to  render  her  liable  to  the  plaintiff  by  the  delivery 
of  the  money  to  C  for  A ;  that  such  delivery  would  not  be  a  con- 
version.    The  plaintiff  claiming  that  C  was  defendant's  general 


ADDENDA.  901 

agent,  and,  therefore,  she  was  chargeable  with  his  knowledge  and 
acts  in  respect  to  the  money,  the  court  iield  that,  it'  the  jurj 
should  find  that  C  was  the  general  agent  of  the  defendant,  and 
that  she  put  the  money  into  his  hands,  with  special  directions  to 
deliver  it  to  A,  that  C  was  only  the  agent  of  the  defendant  for 
that  purpose,  and  even  if  C  knew  that  the  money  had  been  stolen 
from  the  plaintiff  by  A,  the  defendant  was  not  chargeable  with 
such  knowledge. 

Hills  V,  Hayes,  38  Coun.  532. 

Trustee.  —  One  to  whom  land  is  conveyed  to  build  upon  and 
to  reconvey  on  receipt  of  mortgages  for  the  expense,  cannot 
obtain  good  title  by  purchasing  under  mortgages  on  the  premises. 

Terret  v.  Crombie,  6  Lans.  82. 

Undertaking.  —  The  satisfaction  of  a  judgment  on  affirmance 
releases  the  sureties  and  entitles  the  appellant  to  a  return  from 
them  of  property  delivered  as  security,  unless  the  satisfaction  was 
obtained  by  mistake  or  fraud,  to  which  the  sureties  were  a  party. 

6ove  V.  Laiorence,  6  Lans.  89. 

Usury.  —  The  act  of  1837  does  not  authorize  the  institution  of 
a  suit  in  equity  to  annul  a  contract  for  usury,  in  any  case  where 
such  an  action  could  not  have  been  maintained  before  the  passage 
of  the  act.  It  simply  changes  the  terms  on  which  the  borrower 
may  obtain  relief.  The  right  exists  only  when  the  defense  of 
usury  is  not  available  at  law  or  the  instrument  sought  to  be 
avoided  is  a  cloud  upon  title,  or  some  other  necessity  for  the  inter- 
position of  equity  exists. 

Atherton  v.  Belden,  49  N.  Y.  373. 

Warranty.  —  Notwithstanding  inability  to  determine  whether 

an  article  is  of  the  kind  represented,  the  wan-anty  is  broken  as 

soon  as  made,  as  where  a  nurseryman  represents  trees  to  be  of 

a  particular  kind ;  otherwise,  if  he  warrant  the  trees  to  bear  a 

certain  kind  of  fruit. 

AUen  V.  Todd,  6  Lans.  228. 

The  purchaser  of  goods  by  sample  ought  to  examine  them 
without  delay ;  and  if  he  find  that  they  are  not  conformable  to 
the  sample,  he  may  reject  them  and  rescind  the  contract,  giving 


902  ADDENDA. 

immediate  notice  that  he  does  so,  and  that  the  goods  are  at  the 
risk  and  disposal  of  the  vendor.  Should  the  vendor  not  acqui- 
esce, the  purchaser  should  place  the  goods  in  neutral  custody, 

duly  apprising  the  vendor. 

Couston  V.  Chapman,  3  Eng.  Eep.  187, 
2  Scotch  and  Div.  App.  350 ;  and  see 
Moak's  note  3  Eng.  193. 

An  agent  to  sell  presumptively  has  authority  to  warrant. 

Lessee  v.  Williams,  6  Lans.  228. 

A  warranty  that  the  goods  shall  correspond  with  a  sample  may 
be  found  from  the  transaction,  without  an  express  agreement 
therefor.  So  evidence  of  an  usage  to  sell  by  sample  is  admissible 
on  the  question  of  whether  there  was  one. 

Atwater  v.  Clancy,  107  Mass.  369. 

"Where  a  wine  merchant  ordered  from  the  defendant  a  rope  to 

be  used  for  raising  wine,  and  the  defendant  not  having  such  an  one 

as  was  desired,  undertook  to  furnish  one ;  held,  that  a  warranty  was 

implied  that  the  rope  should  be  fit  and  proper  for  the  purpose, 

and   that   the   defendant   was   liable  in   case  for  consequential 

damages  resulting  from  the  insufficiency  of  the  rope  —  he  being 

considered,  as  between  the  parties,  the   manufacturer.     It  seems 

the  rule  extends  to  all  cases  where  the  buyer  has  a  right  to  and 

does  rely  upon  the  skill  and  judgment  of  the  seller. 

Brown  v.  Edyington,  2  Scott,  N.  R.,  496, 
2  Man.  &  Gr.  279,  1  Drinkwater,  106. 

Where  a  railroad  company  was  informed  that  unless  certain 
shoes  were  delivered  by  a  particular  time  they  would  be  thrown 
upon  the  hands  of  the  shipper.  Held,  the  company  was  only 
liable  for  the  ordinary  damages  of  a  non-delivery,  they  not  hav- 
ing notice  of  an  extraordinary  contract  on  which  the  shipper 
desired  to  deliver  the  shoes.  In  order  to  render  the  carrier  liable 
for  more  than  ordinary  damages  he  must  have  notice  of  the  extra- 
ordinary state  of  affairs  and  assent  to  accept  the  contract  upon  those 

terms. 

Home  V.  Midland  Railway  Co.,  3  Eng. 
Rep.  390,  L.  R.  7  C.  P.  583, 

After  the  parties  had  exchanged  horses,  and  consummated  the 
exchange,  the    agreement  was  rescinded  and  a  new  agreement 


ADDENDA.  903 

made,  by  which  defendant  sold  his  horse  to  plaintiff:  Held,  that 
the  agreements  and  warranties  made  on  the  first  bargain  did  not 
enter  into  the  second.  A  warranty  must  be  made  during  the 
treaty,  or  at  the  time  of  the  sale,  or  at  least  before  the  perform- 
ance of  the  substantial  terms  thereof. 

Shull  V.  Oatrander,  63  Barb.  130. 

Water  and  water-courses.  —  It  is  a  settled  principle  that  when- 
ever any  act  injures  another's  rights,  and  would  be  evidence  in 
future  in  favor  of  a  wrong-doer,  an  action  may  be  maintained  for 
an  invasion  of  those  rights,  although  there  be  no  proof  of  any 
specific  injury.  Hence  where  sawdust  from  defendant's  mill 
floated  down  into  the  plaintiff's  basin,  although  it  alone  might  no+- 
cause  inconvenience  to  the  plaintiff,  but  accompanied  by  sawdust 
from  other  mills,  the  plaintiff's  flowage  was  obstructed :  //^Z(^, 
that  the  defendant's  deposit  of  any  sawdust  violated  the  plaintiff's 

right  and  was  actionable. 

Delaware  and  Hudson  Canal  Co.  v.  Tor- 
■     rey,  7  Am.  Law  Re^.  (old  series)  61 1, 
Sup.  Ct.  Penn.  (1859). 

Allowing  flax-shives  to  float  down  a  stream  so  as  to  injure  a 
neighbor's  dam  is  actionable. 

O'Reilly  v.  McChesney,  49  N.   Y.    673 
affirming  3  Lans.  278. 

One  who,  for  his  own  purposes,  so  manages  his  lands  as  to  col- 
lect  there  in  abnormal  quantities  any  thing  likely  to  do  mischiel 
if  it  escape,  is  i?Wma>a^  liable  for  the  damages  consequent 
upon  its  escape.  As  where,  by  digging  for  ore,  he  leave  hollows 
which  fill  with  water  from  rains  and  allow  it  to  accumula  e, 
though  not  guilty  of  any  personal  negligence,  and  though  the 
accident  arise  from  exceptional  causes. 

Smith  V.  Fletcher,  3  Eng.  R.  423,  L.  R., 
7  Exch.  305. 

If  one  tenant,  in  common,  has  been  in  the  habit,  for  the  con- 
venience of  his  individual  mill  below,  of  flowing  the  lands  owned 
in  common,  he  cannot,  by  conveying  the  mill,  give  a  right  to  his 

grantee  to  flow  such  lands. 

Crippen  v.  Motm,  49  N.  Y.  63. 


904  ADDENDA. 

The  giving  away  of  an  embankment  constructed  by  a  railway 
is  prima  facie  evidence  that  it  was  insufficient.  If  the  giving 
away  were  caused  solely  by  a  storm  of  such  an  extraordinary 
nature  that  no  experience  could  have  anticipated  its  occurrence, 
the  company  would  not  be  liable,  but  whether  such  a  storm 
was  the  cause  of  the  accident  is  a  question  for  the  jury.  It  is 
difficult  to  fix  any  definite  legal  rule  relative  to  the  amount  of 
precaution  requisite  in  the  construction  of  works  of  a  permanent 
character  to  guard  against  external  violence  from  extraordinary 
causes. 

Great  Western  Railway  v.  Braid,  1 
Moore's  Privy  Council  Cases  (N.  S.) 
101. 

Work  and  labor.  —  A  violation  of  a  contract  of  hiring  for  a 

definite  period  with  an  offer  by  the  employed  to  perform  prima 
facie  entitles  him  to  recover  the  contract  price.  The  law,  how- 
ever, requires  from  him  the  active  duty  of  making  reasonable 
exertions  to  make  the  injury  as  light  as  possible  and  seek  for  and 
obtain,  if  he  can,  labor  elsewhere.  To  make  a  case  for  mitigating 
damages  the  defendant  is  required  to  prove  that,  by  making  rea- 
sonable exertions,  employment  could  have  been  secured  by  the 
plaintiff'. 

Oillis  V.  Shaw,  63  Barb.  177. 

One  who  hires  another,  if  he  fills  the  place  satisfactorily,  may 
terminate  the  agreement  whenever,  in  his  judgment,  he  does  not 
meet  its  requirements. 

Tyler  V.  Ames,  6  Lans.  280. 

Where  one  agreed  to  work  for  another  three  years  with  the  use 
of  a  house,  if  the  employer  sold,  and  the  laborer  could  not  make  a 
satisfactory  arrangement  with  the  purchaser,  but  was  compelled  to 
leave,  the  employee  to  be  paid  $300.  Held^  that  if  the  purchaser 
offered  to  retain  him  on  same  terms  it  was  a  satisfactory  offer, 
and  he  could  not  recover  the  $300. 

Puller  V.  Easton,  6  Lans.  247. 

One  who  has  lived  with  another  as  a  member  of  his  family, 
cannot  recover  for  services  performed  while  so  residing. 

Shirley  v.  Bennett,  6  Lans.  512. 


ADDENDA.  905 

Driving  an  omnibus  is  worldly  employment  and  not  a  work  of 
charitj  or  necessity,  and  is  not,  therefore,  lawful  on  Sunday.  A 
contract  of  hiring  by  the  month  does  not,  in  general,  bind  the 
hireling  to  work  on  Sundays,  and  if  his  work  be  such  as  the  stat- 
ute forbids,  an  express  agreement  to  perform  it  on  Sunday  will 
not  protect  him,  for  such  a  contract  is  void.  Though  traveling 
does  not,  in  a  legal  sense,  fall  within  the  description  of  worldly 
employment  intended  to  be  prohibited,  yet  the  running  of  public 

conveyances  does. 

Commonwealth  v.  Johnson.  3  Am.  Law 
Reg.  (0.  S.)  285,  433,  517,  23  Penn.  St. 
102. 

lU 


INDEX. 


ABATEMENT  AND  REVIVOR: 
Abatement  :  paqk- 

one  creditor  may  sue  if  other  has  been  paid  his  share Ill 

credit  given  to  A,  without  notice  B  interested 11» 

does  not  divest  rights  of  receiver *1" 

formerly  waived  by  plea  in  bar *J? 

goes  only  to  defect  in  present  proceedings. 4Ja 

req uired  to  point  out  defect  and  give  plamtiff  better  writ 4Jb 

distinction  between  pleas  in,  and  pleas  in  bar  abolished  by  Code 4yb 

both  may  be  united  in  same  answer *Jo 

court  should  require  separate  verdict  on  each *Jo 

if  pleads  in  abatement  only,  not  entitled  to  plead  over 4 jo 


court  or  iury  should  assess  damages  and  render  final  judgment. 496 

if  pleads  A  and  B  necessary  parties  not  sustained  by  proof,  A  alone  is,  496 
if  pleads  compromise  of  former  suit,  should  plead  former  suit  pending,  4Jb 


mere  plea  of  former  suit  by  third  person  not  good,  unless  owned  cause  ^^^ 

of  action .07 

how  discontinuance  perfected jqL 

non-joinder  of  dormant  partner *^^ 

when  one  joint  owner  of  claim  may  sue  for  his  share  .........   ^-'o 

if  non-joinder  of  one  partner  not  pleaded,  cannot  apportion  damages. .     4J» 

otherwise,  as  to  tenants  in  common  . .  .^ •  •  - 4-'° 

infancy,  personal  and  non-joinder  of  infant  good  defense 4y» 

misnomer  to  be  taken  advantage  of  by Jqq    en 

plea  of  non-joinder  must  show  party  living *'>'>i  o"^ 

but  plea'  that  resides  at  particular  place  good |J^^ 

in  equity  cases ^gg 

in  admiralty •  •  V  ^pq 

defect  of  parties  must  be  pleaded ll"'j: --"Ow,  o^^ 

so  that  defendant  privileged  from  arrest,  because  attending  court ooi 

or  by  motion  for  discharge • •-.■•• ' '^r/j^.W  ft«i 

BO  that  plaintiff,  in  a  suit  commenced  by  attachment  is  a  non-resident,  661 
under  plea  non-joinder  not  good  defense  to  show  note  given  intention- 

ally  to  one  of  several  partners _ • • „,., 

-•'  .   .    ,        -        . :j:  „„4.„  5„:„<-  o,j(j  several ""'■ 

661 

(!C1 

nor  if  corporation  that  is  still  in  existence  . ..... . ._.  •  •  •  •  • 

error  in  not  doing  so  cured,  if  fact  proven  without  objection    ... . . . ....  bOi 

remedy,  if  no.i-joinder  of  necessary  party  appears  by  complaint....  4  J  J,  WW 

even  though  complaint  do  not  show  he  is  living ^^^ 

executrix  marrying  pending  suit 

Revivor  :  ^.g 

in  replevin : ' ' " *i'' " i 'i  V !)H 

in  case  of  death,  marriage  or  other  disability 93    SM 

when  representatives  have  no  right  of  election '^^ 

reviving  by  supplemental  complaint. •  •  •  gg_io5   551 

what  causes  of  action  may  be  revived •  •  •  ■  •  •  ••  •;;••',  '    gg 

party  seeking  to  revive  must  show,  is  successor,  and  how  succeeds  .....     -^ 

when  substitution  refused :•••■,••/•  '''l-:'''i.^  n,Vr.Vhfir VnVirt !    99 

suit  in  county  court  cannot  be  revived  by  actiOQ  m  another  court ^^ 

infant  born  after  suit  commenced '.*.".'.  100,  851 

effect  of  abatement j"  ■'"  V  Vv^ lOO'  851 

when  may  proceed,  notwithstanding  deatn -^  •      •  ^j^ 

proceeding  nu7ic  pro  turic ' 


nor  is  non-joinder  of  partner,  if  note  joint  and  several bbl 

nor  if  defendant  did  not  contract  as  partner "^ 


908  INDEX. 

ABATEMEET  AND  REVIVOR  — Contrnwcd; 
Revivor  :  pagb, 

abatement  and  revivor  of  ejectment 99 

and  need  not  make  widow  a  party 100 

but  in  action  to  remove  cloud,  tieirs  and  representatives  necessary.  100 

period  of  abatement  not  computed  as  part  of  any  time  prescribed 101 

when  necessary  to  revive  against  successor  of  officer 101 

against  husband 101 

foreign  representative  cannot  revive 101 

how  and  when  revivor  to  be  had 101,  IQ'i 

whether  defendant  can  revive,  and  when 102,  290,  851 

but  may  after  judgment 102 

so,  if  counter-claim 103,  851 

when  provision  as  to  supplemental  complaint  does  not  apply 102,  290 

what  sufficient  commencement  to  authorize  revivor 102 

suit  cannot  be  revived  for  costs  only,  unless  taxed 102 

if  more  than  year  elapsed,  court  cannot  revive  on  motion 102 

but  supplemental  complaint  may  be  filed  as  matter  of  right 102 

no  revivor  necessary,  if  on  death  cause  of  action  passes  to  other  parties,  103 

practice  in  such  cases 103 

death  before  verdict,  in  cases  of  tort 103 

when  representative  of  one  partner  may  revive  103 

action  may  be  revived  and  continued  as  separate  action  against  repre- 
sentative of  deceased 851 

action  for  wrongfully  causing  deat'a  survives 99,  103,  851 

so  for  taking  and  cariying  away  property 851 

if  action  commenced  in  name  of  dead  man  no  revivor 103 

how  action  revived  in  case  of  death  after  judgment 103 

remedy  upon  judgment  in  such  case 103,  104 

proceedings  on  revivor  against  heirs 104 

if  receiver  die,  his  successor  may  revive  and  how 104 

pi'actice  on  revivor  by  supplemental  complaint 104 

new  trial  sometimes  granted  in  tort,  on  condition  shall  not  abate 104 

effect  of  revivor 104 

abatement  and  revivor  at  law  and  in  equity  discussed,  and  authorities 

referred  to 104 

supplemental  complaint  after  year 285,  290 

in  cases  of  death,  etc 'dSG,  287 

change  of  parties  in  interest 286,  287 

on  creditor's  bill  against  husband  and  wife,  if  she  die  after  issue,  cannot 
have  judgment  for  interest  devolving  upon  husband  by  such  death. . .  843 

See  Supplemental  CoMPLArNT. 
ACCEPTANCE: 

how  agreement  for,  pleaded 192 

under  statute  of  frauds,  buyer  must  accept  goods 675 

ACCORD  AND  SATISFACTION: 

order  on  third  person  accepted  and  paid  is 662 

so  payment  in  goods  at  agreed  price 662 

if  debt,  barred  by  statute  of  limitations,  payment  of  part  in  full  will 

not  revive  balance 663 

if  creditor  acquire  security  of  third  person,  is  a  valid 662 

so  if  third  persons  raise  the  money  and  pay  part 851 

if  accepted,  to  be  in  full,  if  paid,  is  though  paid  after  maturity G62 

so  if  debtor  gives  security 662 

payment  of  part,  before  due  in  full,  is  a  valid 6C2 

accepting  obligation  of  third  person  is  not,  unless  expressly  so  agreed..  662 

even  though  receipt  in  full  be  given 662 

otherwise  if  such  agreement (i(xi 

so  of  check  of  debtor 662 

parol  release  without  consideration,  void 663 

one  of  two  joint  creditors  took  part  in  full  of  his  half 66;J 

natural  love  and  affection,  by  parent,  good  consideration 663 

mere  agreement  by  third  person  to  pay  debt  invalid,  uidess  novation...  603 

or  performance 663 

pavment  of  part  by  debtor  after  due,  no  satisfaction,  though  agreed  to 

be  taken  in  full 663 

unless  compromise  of  houestlj-  disputed  claim 663 


IXDEX.  909 

A.CC011D  AND  SATISFACTION— Coufinued;  page. 

new  agreement  no  bar,  unless  performance 603 

or  taken  in  lieu  of  former 6(j3 

executoiy  agreement  for  no  bar,  though  performance  tendered 6G3 

so  a  plea  that  plaintiffs  claim  allowed  on  settlement  invalid. . .   603 

settlement  for  injury  valid,  though  damages  subsequently  accrue CG3 

repairing  injury  to  satisfaction  of  third  person,  good 6(j3 

plea  of,  not  supported  by  proof  of  tender 701 

See  Former  Suit  ;  Payment. 
ACCOUNT : 

when  action  of ,  lies 291 

when  settled,  opened  and  how  far 291 

items  of,  need  not  be  set  out 809 

how  to  be  obtained 809 

answer  to  be  to  complaint,  and  bUl  of  particulars  no  part  thereof 809 

ACCOUNT  STATED: 

count  in 197-204 

when  action  lies 205 

ACT  OF  GOD: 

defense  that  prevented  by 563 

excuses  performance 676 

ACTION : 

when  may  be  severed 126 

once  accrued,  only  discharged  by  satisfaction 458 

ACTION  ON  THE  CASE : 

what  it  was  and  how  far  now  exists , 216-221 

See  Case. 

ACTOR: 

when  restrained  from  acting  elsewhere 353,  871 

specific  performance  of  agreement 353 

ADMIRALTY: 

pleadings  under  Code  analogous  to  pleadings  in 259 

ADMISSION : 

any  allegation  not  denied  is  admitted 505,  796 

every  material  allegation  in  complaint  not  denied  by  answer,  admitted,  796 
so  every  material,  of  new  matter  in  answer  constituting  a  counter-claim,  796 
new  matter  in  answer  not  constituting  counter-claim,  deemed  contro- 
verted   J9<5 

such  admissions  must  be  confined  to  allegations  of  fact 796 

does  not  include  allegations  as  to  intention 796 

or  legal  effect  or  construction  of  an  instrument JiXj 

nor  prayer  for  relief ^07 

the  allegations  must  be  malerial J]97 

not  deemed  material  unless  an  issue  could  be  taken  thereon. . .. 797 

every  allegation  deemed  immaterial,  except  naked  facts  on  which  right 

depends ■. • .•  •  •  "^^ 

every  allegation  which  must  or  may  be  alleged  in  good  pleading,  niatenaU 

every  thing  else  Icamaterial .•  ■ i||^ 

facts  in  mitigation  or  aggravation,  usually  immaterial ^J» 

OHiitting  to  deny  such  matter  not  tantamount  to  admission <  98 

allegations  as  to  damage  not  admitted  by  failure  to  deny .•••••••   '^^^ 

plaintiff  must  prove  amount  of  damages  or  only  entitled  to  nominal  ...  ^J8 

so  in  trover  as  to  allegations  of  value  of  property  ..... .^ iVfS 

general  denial  in  trover,  is  of  conversion  and  of  plaintiff^s  title <.W 

and  defendant  may  disprove  plaintiff's  title ^Js 

cannot  dispute  a  material  fact  admitted  by  not  being  denied i.iJ 

but  amendment  may  be  allowed  so  as  to  deny ........... ....  »^ 

defendant  not  answering,  not  affected  by  answer  of  co-defendant,  (99,  80^ 
for  purpose  of  confession  and  avoidance  not  bindmg  as  admissicu  .  .^.  799 


910  INDEX. 

ADMISSIO'H— Continued:  page. 

admission  construed  most  strongly  against  defendant 799 

if  says  agreement  incorrectly  stated   and    specifies    some    particulars 

others  admitted 799 

60  denial  that  defendant  has  broken  agreement,   "  otherwise  than  as 

hereafter  stated," 800 

in  such  case,  onus  on  defendant 800 

if  no  denial  but  affirmative  defense,  onus  on  defendant 800 

denial  of  whole  complaint  invalid ;  should  be  of  each  allegation 800,  803 

negative  pregnant 800 

must  deny  knowledge  or  information,  or  admitted 800.  803 

must  deny  substance  of  allegation,  and  if  does,  is  good 801-803 

and  remedy  by  motion  and  not  demurrer 801 

admission  only  applies  to  the  issues  on  that  jjleading 803,  811,  812 

remedy  when  part  of  cause  of  action  admitted 803 

how  far  denial  aided  by  rule  that  pleading  to  be  liberally  construed  ....  807 
after  made,  amendment  by  denial  only  allowed  where  clear  mistake....  799 

See  Denial. 

ADVANCEMENT : 

good  defense  to  action  to  recover  real  estate 664 

though  should  be  primarily  chargeable  on  real  estate 664 

that  was  may  be  proved  by  declaration  of  parent 6G4 

"  unless  contradicts  a  writing 664 

may  be  made  such  by  a  wiU,  though  note  taken 664 

ADVERSE  ENJOYMENT: 

must  be  pleaded 564 

ADVERSE  POSSESSION: 

for  twenty  years  public  purpose 480 

how  to  be  alleged 570 

grant  of  lands  so  held  only  void  as  to  that  part  of  lands 664 

See  User. 

AFFIRMATIVE  RELIEF: 

defendant  may  have  .a 587 

as  foreclosure  of  a  mortgage 587 

fraud  in  obtaining  a  judgment 587 

mortgagor  may  ask  to  redeem 587 

and  reformation  of  a  contract 587,  588 

AGENT: 

how  contract  by,  averred 194,  195,  222 

liable  for  fraud,  though  principal  sued 292 

when  and  how  far  warrants  his  authority 292,  293,  319,  470 

how  must  contract  to  bind  principal 292 

when  liable,  personally,  and  when  not » 292,  293,  852 

how  agent  to  plead,  contracted  for  principal 292 

principal  bound  to  indemnify 293 

unless  agent  knew  act  to  be  a  willful  wrong 293 

or  do  unauthorized  act 293 

if  seeks  to  recover  costs  recovered  of  sub-agent,  must  aver  them  spe- 
cially   293 

cannot  maintain  action  in  own  name 293 

when  replevin  will  not  lie  against 309 

agent  purchasing  as,  may  change  order  for  self 309 

purcliasing  scrip  and  transferring  to  own  name 310 

if  party  knows  facts  as  to  authority,  no  warranty 320 

how  far  principal  may  ratify  demand 3;i3 

one  party  cannot  act  as  agent  for  other 339 

to  insure,  must  obtain  written  policy 440 

but  if  compelled  to  pay  principal  entitled  to  subrogation 440 

liability  for  selling  property  of  another 460 

liability  of  seller  for  warranty,  by 470 

when  impliedly  warrants,  title  of  property  sells 473 

in  trover,  may  defend  if  evicted 473 

to  sell,  sold  to  another  house  of  which  he  was  member 493 


INDEX.  911 

AGENT  —  Continued :  page. 

agent  must  faithfully  serve  principal    493 

may  receive  orders  for  goods  of  another  house 493 

revocation  of  authority  need  not  be  pleaded 567 

how  far  statute  of  limitations  a  defense  in  action  for  account 682 

not  party  in  interest 767 

when  to  sell,  liable  for  collecting  draft •  • »» 

owner  of  paper  collected  is  of  proceeds  so  long  as  can  be  traced e« 

whether  to  sell  for  certain  price  guilty  of  trover  in  selling  for  less  ......  843 

powers  of  special  limited,  and,  unless  authorized,  cannot  assume  perUs 

of  navigation •  •  •  •  • : ;; ^ 

claimed  to  borrow  money  for  principal,  but  used  it  himseli bo- 

See  Principal  and  Agent. 
AGGRAVATION: 


facts  in,  usually  immaterial . 


798 


AGREEMENT : 

assignment  of  patent  right  to  be  paid  for,  if  works 293 

none,  if  minds  of  parties  do  not  meet <**»'  *i^ 

to  lease  for  best  rent 2?^ 

seller  signed  papers,  buyer  did  not • *^ 

when  action  does  not  lie  on  breach  of,  to  extend  payment bJ- 

to  pay  when  convenient gg, 

to  pay  in  "satisfactory  notes" "'^ 

See  Bond;  Covenant. 
Illegal  Contract. 
Impossibility. 
Modification  of  Contract. 
Rescission. 
Subscriptions  . 
Sale. 

Undertaking. 
Vendor  and  Vendee. 

AIDER.    See  Defects. 

ALIMONY : 

when  may  have,  though  parties  living  in  same  house ,^^ 

when  suit  for,  will  not  lie,  unless  divorce  asked "•*» 

ALLEGATA  ET  PROBATA: 

common-law  strictness,  that  aUegations  and  proofs  should  correspond,  ^^ 
abolished 

See  Secundum  Allegata. 

ALLEN  V.  PATTERSON :  _  203 

considered 

ALTERATION:                                                       "         ^     •  ^  «y« 

need  not  be  pleaded,  if  execution  of  instrument  denied ooo 

ALTERNATIVE:  ^09 

how  far  pleader  may  ask  for  alternative  relief ~^ 

but  prayer  for  relief  must  not  be  inconsistent '.'.!'.".*!*.'.  271 

when  pleading  cannot  be  in .*.!!!!..  272 

remedy  when  aUegations  in 

AMBIGUJOUS :  gO^ 

expression  may  be  explained  by  context • 

AMENDED  ANSWER.    See  Amendment  ;  Supplemental  Answer. 


912  INDEX. 

AMENDMENT:                                                                                                     pagb. 
only  on  payment  of  costs 154 

when  allegation  of  performance  and  proof  of  waiver 181 

of  amount  claimed  or  prayer  for  relief 275 

merely  verifying  a  pleading  is  not 283,  714,  822 

but  court  may  allow  such  an  amendment 283 

when  proper  instead  of  supplemental  complaint 284,  285-287 

adding  or  striking  out  a  party 285 

where  performance  alleged  may  allow  facts  excusing 405 

from  use  and  occupation  to  one  against,  as  assignees 416 

when  alleges  performance  and  shows  waiver 566 

party  brought  in  by,  may  plead  statute  of  limitations 682 

if  demurrers  and  answers  together  leaving  out  one,  not 714 

remedy  in  such  case 823 

need  not  reply 822 

by  being  allowed  to  withdraw  answer  and  demur 769,  775-778 

is  matter  of  discretion 776,  853 

not  allowed  unless  court  satisfied  pleading  interposed  in  good  faith 776 

nor  if  leave  to  do  so  has  been  once  given 77S 

nor  if  apparent,  party  can  i'n  no  event  succeed 776 

what  may  be  set  up  on  leave  to  amend 776 

although  court  may  grant  leave  to  amend,  cannot  compel  it 776 

on  motion  on  ground  pleading  frivolous  may  amend,  of  course,  before 

time  expires  to  amend 778 

and  if  corrected  by  amendment,  motion  denied  without  costs 778 

not  allowed  to  retract  admission  except  on  clear  proof  of  mistake 799 

terms  on  allowing  to  set  up  usuiy,  etc 853 

how  and  when  allowed  before  the  Code 817,  818 

provisions  of  the  Code  as  to 818 

right  to  amend  pleading,  of  course 81$ 

may  be  before  pleading  answered,  or  before  time  allowed  to  answer. . . .  819 

if  by  mail,  has  double  time 810 

amended  complaint  may  be  served  after  amended  answer 819 

amended  pleading  takes  place  of  original 819 

party  cannot  disregard  amended  pleading 819 

remedy  if  amendment  claimed  to  be  frivolous 819 

amendment  does  not  prejudice  proceedings  already  had 820 

if  default  taken  before  amendment,  valid 820 

right  ti)  amend  waived  by  noticing  cause  for  trial 820 

cannot  be  made  without  paying  costs,  if  adversary  has  moved  for  irregu- 
larity    820 

but  may  before  service,  though  motion  papers  prepared 821 

may  amend,  of  course,  after  motion  on  ground  pleading  frivolous 821 

may  insert  any  proper  matter  on  amendment 821 

but  may  not  add  or  strike  out  parties 821 

may  set  up  different  claim,  cause  of  action,  or  defense 821 

may  amend  where  general  denial  only  pleaded 821 

matter  occurring  after  pleading  not  proper 822 

amended  pleading  to  be  served  on  all  the  parties 822 

cannot  amend,  of  course,  after  trial  commenced 822 

amended  pleading  must  not  be  identical  in  legal  effect  with  former  ....  822 

when  court  may  allow 823 

Code  and  Revised  Statutes  both  in  force 823 

may  allow  change  from  contract  to  tort,  and  vice  versa 824,  825,  877 

from  trover  to  replevin 824 

to  set  up  counter-claim 825 

to  increase  damages  claimed 825,  833 

but  only  on  condition  of  new  trial 833 

but  not  to  make  an  entire  new  suit  between  entirely  different  parties  ..  825 

that  object  should  be  obtained  by  discontinuance 825 

but  may,  by  discontinuing  against  infant,  without  costs 825 

by  striking  out  a  defendant 825 

by  adding  a  defendant  even  after  appeal 826 

by  adding  a  ijlaintil'f 8:^6 

a  mistake  in  name 827 

by  striking  out  a  plaintiff 8'i7 

by  adding  a  next  friend S27 

by  bringing  in  parties  at  any  time 827,  830 

terms  of  allowing 827,  829,  852 

by  allowing  allegations  material  to  cause  of  action  or  defense 827,  SJO 


INDEX.  913 

AMENDMENT  —  Continued :  FAon. 

such  uot  usually  allowed  after  judgment '  •  • "  S^^  v^, 

how  and  wheu  granted  on  trial B-».  ^_w 

difference  bet  ween  allowance  of,  before  and  on  trial o-ia 

difference  between  trial  at  circuit  and  before  referee S-'J 

by  setting  up  unconscionable  defense ■  •  • ;  •  ••800,  8.)U 

if  cxmphiint  shows  cause  of  action,  not  barred,  but  proof  shows  is MU 

if  facts  pleaded,  as  to  relief  prayed  for 830 

if  issues  changes  by,  reference  may  be  vacated »^ 

or  referee  may  be  changed •  • •  • •  •  ■  •  •  ^^ 

but  not  necessary  to  commence  trial  de  novo  unless  referee  changed MU 

referee  has  same  power  to  allow  as  court 8;iO 

party  against  whom  granted  to  be  allowed  to  answer M(' 

and  may  set  up  new  or  any  answer  pleases •,••••.•/.• •  •  Wl 

copy  of  pi-oposed  amended  pleading  should  be  served  with  moving 

papers r,„, 

or  iuci  )rporated  in  affidavit ^It 

and  affidavit  for  should  usually  be  made  by  party »^i 

not  allowed  to  set  up  facts  occurring  after  suit ^j| 

allowance  of,  usually  matter  of  discretion »^| 

appeal  lies  to  general  term  from  order  on  motion ^Jj 

but  not  court  of  appeals • ^\ 

but  general  term  not  to  reverse  except  in  clear  case  •••••••. ^^| 

court  should  be  satisfied  good  excuse  for  not  before  pleading. . .........  b6i 

or  that  party,  to  accomplish  some  other  object,  did  uot  intentionally  so 

plead 0.1, 

or  that  facts  were  not  known  to  him •  •  •  •  ^j- 

bnt  if  imis  darrieii  is  error,  to  refuse  in  proper  case »<>»,  o»/^ 

party  moving  to  be  free  from  laches VA' •;.• CT '  V-^i 

appellate  court  will  not  reverse  for  defects  not  affectmg  substantial  ^^ 

if  litigaVedon  nnn-itsVcourtViib^^^^  granting  on  appeal,  in  favor  of  ^^ 

affirmance ooli 

but  must  be  consistent  with  equity ??^ 

and  will  not  be  granted  for  reversal :  •  v  *  *  j a-i-> 

so  variance  disregarded,  if  not  objected  to,  till  proof  closed M- 

new  count  may  be  allowed  on  appeal ^5 

so  after  a  nonsuit  under  proper  circumstances •  •  •  •  ^ 

allowed  with  great  caution  after  trial ''**'  ??J 

except  as  to  mere  formal  amendment °^ 

amendments  at  trial g^^ 

is  matter  of  discretion g.^ 

may  be  allowed  on  reversal g^ 

on  overruling  demurrer \"."-:C «■« 

must  appear  to  have  been  interposed  in  good  faith ■•  •  •  ^" 

so  plaintiff  may  be  allowed  to  amend ^•^'  ™J^ 

and  in  many  cases  should  be ;  *,'  *,* eili? 

an  appeal  court  may  make  same  amendments  as  court  below o;>" 

and  where  error  does  not  go  to  merits  will ?^„ 

in  furtherance  of  justice  in  cases  of  variance 

i'l  actions  to  determine  claims  to  real  property ^^ 

if  pleading  states  facts,  others  maybe  stricken  out <"^*' 

ANIMALS:                                                                         .  ,^    „,„ 

owner  of,  when  liable  for  injury  by,  if  knows  of  vice ~;^<  o-^>- 

aiid  negligence  need  not  be  averred •  •  • "     '   c"r.> 

gist  of  the  action  is  i<eeping  of  animal  after  knowledge •  ^^j^ 

what  sufficient  complaint !!!!!!!  2*.M 

scienter  should  bo  alleged !!!!'.!!  21U 

unless  animal  trespassing ^'M 

when  breaking  and  entry  gist  of  action ;  •  •  •  • ^"u 

scienter  not  necessary,  if  dog  kills  or  wounds  sheep ~;^ 

otherwise,  for  chasing  and  worrying.. \'''','„',.'^ 294 

although,  if  scienter  is  admissible,  to  increase  ^^'i-'^^f^: ; ;  • l^  J.-^ 

one  willfuUy  setting  dog  on  animals,  liable  to  '"jury  He  inflicts il«,  !;>* 

but  father  of  minor  is  not,  unless  he  ai)pro\  es  ace ^  ,^^ 

liability  of  owner  of  dogs  which  tight  ....■• 295 

offering  to  settle  admissible  to  show  scienter "",".'.*!!  295 

what  suUioieut  evidence  of  scienter 

115 


914  INDEX. 

ANIMALS— Cojitinued:  page. 

owner  of  wild  animals,  how  far  liable  for  injuries  by 295 

when  owner  of,  liable  for  injury  done  by,  to  one  on  his  premises 295 

who  presumed  to  be  owner 295 

w^hat  averments  necessaiy  in  action  against  possessor 296 

not  sufficient,  belonged  to  hired  man 296 

scienter  not  necessary  in  cases  of  gross  negligence 296 

what  is  proof  of  such  negligence 296 

one  who,  by  meat,  tempts  dogs  to  destruction,  liable 296 

diseased,  allowed  to  run  at  large 385 

injury  by,  while  trespassing 448 

See  Negligence. 
ANSWER: 

defect  of  parties  plaintiff,  when  necessary 80 

for  misjoinder  of 80 

to  be  served  withiu  twenty  days  after  service  of  complaint 495 

what  it  was  bef oi-e  Code,  and  contained 495 

formerly,  defenses  to  jurisdiction  in  nhatement  and  in  bar 495 

if  pleaded  in  abatement,  waived  plea  to  jurisdiction 495 

if  in  bar  waived,  plea  in  abatement 495 

unless  arose  after  commencement  of  suit 495 

plea  in  bar 496,  500 

formerly  by  way  of  traverse 500 

and  confession  and  avoidance 500-504 

nature  of  plea  in  bar  at  law 500,  501 

in  chancery 501 

changes  by  Code 502-504 

formerly  required  to  be  single 503 

and  certain 503 

under  the  Code 504 

to  set  up  affirmative  defenses 505-511 

what  formerly  admissible  under  general  issue 504 

under  Code,  defendant  to  set  up  affirmativelj^  all  affirmative  defenses,506,  507 

when  want  of  consideration  need  not  be  alleged 507 

if  agreement  denied,  plaintiff  must  prove  valid  one 507 

what  defenses  available  under  denial 506-509 

difference  between  plea  and  answer 553 

when  may  interpose  defense  after  suit,  but  before  answer 635 

of  one  defendant  no  benefit  to  another 734 

rule  that  must  answer  entire  cause  of  action    812 

rule  does  not  apply  to  partial  defense 812 

may  supply  defect  of  an  averment  in  complaint 833 

See  Counter-claim;  Denial;  Defense. 

ANTICIPATING  DEFENSE : 

not  proper  in  complaint 254 

APPEARANCE: 

by  natural  persons 53 

infants 53,    55 

corporations 53,    55 

married  women 53,  55,    59 

idiots,  lunatics,  etc 54,    56 

trustees 56 

when  may  proceed,  though  all  not  served 62,  156 

How  attorney  should  appear  to  correct  irregularity 157,  158 

APOTHECARY:  See  Druggist. 

APPEAL: 

how  far  amendments  allowed  on 832 

APPRENTICE: 

master  may  chastise 665 

how  far  that  would  not  be  taught  good  defense 683 

See  Parent  and  Child. 


INDEX.  915 

A.P  PURTEN  ANT :  pagb. 

when  grant  of  mill  carries  raceway 478,  479 

ARBITRATION: 

peudins  suit,  effect  of,  and  how  to  be  taken  advantage  of G59,  6G1 

how,  of  award C.59 

remedy  where  award  fraudulently  obtained 338 

agreement  to  lease  at  rent  to  be  fixed  by  arbitrators 430 

notice  of  time  and  place  of 487 

See  Work  and  Labor. 

ARCHITECT : 

how  far  his  decision  conclusive 487,  4SS 

See  Work  and  Labor. 

ARGUMENT : 

matters  by  way  of,  improper 209 

meaning  of 2?0 

ARGUMENTATIVE : 

answer  not  to  be 605 

ARREST : 

statement  of  facts  showing  right  to 250-253 

when  private  person  may  arrest  without  warrant 331,  332 

when  officer  may 331,  3^52 

on  telegram 332 

how  privilege  from,  to  be  taken  advantage  of GGl,  852 

sheriff  not  liable  for  arresting  privileged  person 852 

sheriff  may  justify  for  not  making  arrest  of  defendant  exempt 6G4 

officer  justifying,  without  warrant,  should  plead  facts  justifying 664 

See  False  Imprisonment  ;  Justification. 

ASSAULT  AND  BATTERY: 

growing  nut  of  gathering  fruit  from  tree  on  or  near  line 296 

physician  not  liable  for  restraining  patient  having  delirium  tremens  ....  21)6 

may  deny  and  justify 585 

trespasser  making  noise  and  refusing  to  leave 664 

what  plea  of  son  assanlt  demefme  must  show 6G5 

if  plaintiff  prove  excess  of  force,  no  defense 605 

plaintiff  entering  defendant's  close  and  taking  his  property 605 

degree  of  force  depends  upon  exigency  of  occasion 665 

ejecting  one  disturbing  religious  meeting 665 

from  burying  ground.     Commonwealth  v.  Dotigherty,  107  Mass 243. 

master  may  chastise  apprentice 6G5 

may  prove  long-continued  provocations 697 

ASSENT : 

none,  if  mind  of  parties  do  not  meet 378 

when  minds  of  parties  do  not  meet 413 

seller  signed  papers,  buyer  did  not 465 

ASSIGNEE: 

when  liable,  personally,  for  rent 297 

what  general,  for  creditors  should  allege 297 

of  mortgage,  what  must  allege  in  foreclosure 297 

liable  to  lessor  for  damages  compelled  to  pay  for  breaches  by 298 

one  partner  assigning  policy  to  another 298 

complaint  in  such  case _2J)8 

of  foreign  executor  or  administrator  gets  title 2'.'8 

may  set  aside  fraudulent  transfer 333 

tender  of  performance  must  be  to 406 

may  have  contract  reformed '^^^ 

how  to  be  charged  for  rent ^^ 

See  Rent. 


916  I]!ifDEX. 

ASSIGNMENT :  paqk, 

what  causes  of  action  are  assignable  under  the  Code 65 

when  tort  may  be  waived  and  cause  of  action  assigned 65 

widow's  right  of  dower 67 

rent  in  arrear 67 

when  expectancy  or  prospective  demand 67,    68 

extra  compeusatiou  to  contractor 67 

vested  interest  subject  to  being  defeated 67 

claim  against  foreign  government  for  illegal  capture 67 

of  entire  claim  in  parts 68 

of  chattel  mortgage 68 

what  causes  of  action  assignable 68-71 

what  not  assignable 71,     72 

one  defendant  became  assignee  of  claim 112 

assignee  of  judgment  when  injunction  sought 127 

assignee  of  mortgage 131 

must  be  alleged 225 

of  mortgage  without  bond 68,  233,  233,  297 

purchaser  under  void  foreclosure  is  assignee  of  mortgage 413 

none,  of  right  of  action  for  seduction 426 

when  tender  must  be  to  assignee 445 

remedy  of  assignee  against  assignor,  if  part  of  demand  assigned  has  been 

paid 473 

mortgagor  rendered  services  to  be  applied  on  mortgage 665 

assignee  may  avail  himself  of  statute  of  limitations  to  set  off 680 

mortgagee  worlced  for  mortgagor  in  payment ;  defense  admissible  after,  688 

to  whom  tender  of  contract  to  sell  must  be  made,  if  assigned 703 

how  assignee  must  tender 703 

See  Assignee;  Assignor;  Parties  Plaintiff;  Rent. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS : 

parties  in  action  to  carry  out 81, 114,  127 

ASSIGNOR: 

when  may  be  made  a  defendant 107, 114,  115,  131 

See  Rknt. 

ASSUMPSIT : 

action  of 197-204 

if  party  has  performed,  may  declare  in 171,  193 

otherwise,  if  has  not  performed .171,  192 

when  lies  to    recover  back    money  paid  through  fraud  or  mistalie, 

etc 192,  197 

but  not  lost  at  gambling 192 

AT  ONCE: 

agreement  to  do  act  at  once  and  without  delay 410 

ATTACHMENT : 

how  fact  that  plaintiff  in  suit  commenced  by,  is  a  non-resident  taken 
advantage  of 661 

ATTORNEY : 

who  assists  in  fraud 112,  113 

verification  not  to  before 283 

remedy 283 

bound  to  deliver  papers  to  client  in  proper  condition 298 

when  liable  for  negligence 298,  299 

what  no  proof  of  negligence 299 

liable  to  printer  for  fees 299 

so  to  sheriff 299 

but  not  to  referee,  except  on  agreement  to  pay. 299 

when  liable  to  one  whose  property  sold  on  execution 299 

when  not  liable  for  perfecting  judgment  against  wrong  person 299 

or  causing  wrong  person's  goods  to  be  sold 299,  300 

liable  for  commencing  suit  in  party's  name  without  authority 300 

what  must  aver  and  prove  in  suit  for  services 300 

may  recover  against  executor  or  guardian  personally 300,  665 


INDEX.  917 

A.TTORNEY  —  Continued :  page. 

demand  necessary  in  action  for  moneys  collected  by 322 

but  not  for  legacy  received  by  him oS.i 

liable  for  malicious  prosecution 371 

rights  of,  when  one  employed  and  talies  partner 403 

remedy  against  maker  or  another  tearing  up  note 450 

liability  of  one  who  issues  execution. 452,  453 

may  recover  back  illegal  costs  paid  to,  if  not  taxed 4(«S 

otherwise,  if  taxed 408 

agreement  by,  to  carry  on  suit  and  pay  expenses 675 

letter  to  next  friend  about  plaintiff  privileged G7!) 

when  statute  of  limitations  commences  to  run  against 682 

he  may  sometimes  reach  money  collected  on  a  judgment  summarily 6^2 

when  tender  to,  good 702 

See  Principal  anb  Agent. 

AUCTION: 

when  warranty  at  sale  by 473 

AUCTIONEER: 

by  mistake  sold  horse  owner  had  sold 456,  458,  460 

when  can  only  recover  statutory  compensation 300 

AUTHOR: 

when  may  recover  of  publisher  for  issuing  incorrect  edition 300 

See  Copyright. 

AWARD : 

when  fraudulent,  may  be  set  aside 139 

if  void,  does  not  bar  action  on  original  cause  of  action 192 

what  sufficient  averment  of  making  and  notice 300 

when  notice  of,  necessary 393 

must  plead  facts  which  render  invalid 563 

that  made  is  a  bar 5(>4 

how  to  be  pleaded 56S 

invalid  if  abritrators  proceeded  without  notice 665 

good  defense  that  arbitrators  made  a  clerical  mistake 665 


BAIL: 

sheriff  liable  as,  and  no  defense  defendant  insolvent 665 

BAILEE : 

trover  by '^^ 

complaint  against '—'^ 

BAILMENT : 

when  bailee  or  bailor  party  in  interest 74,  75,  76,  8.53 

rate  of  damages  in  action  by • '^<    t'i 

if  bailee  breaks  wagon,  not  liable  for  having  it  repaired . . .  .^. ....  4->i 

when  general  owner,  and  when  bailee  may  recover oOO,  oOl.  Nj.* 

damages  in  such  actions ;'|.| 

damages  in  actions  by  pledgee • • ;  •  •  f,^ 

when  judgment  in  favor  of  one  bars  suit  by  other mi,  n>» 

when  pawnor  may  sue    '^,, 

complaint  in  such  cases xJ'J 

damages  in  such  cases „^.'J 

when  bailee  not  liable  for  negligence  of  servant ■■•^-  ^u^ 

liability  of  hirer  of  horse ^.7  X>''o 

liable,  if  drives  horse  farther  than  hired  for. ;••,•: '  o^, 

bailee  liable  for  negligence  of  any  one  to  whom  intrusts  duty ^"^ 

liability  of  bailee  who  has  offered  to  deli  vor  property *•« 

owner  took  his  wagon,  but  another's  whiHletrees. A' ' '  iXV  Ik'J 

bailee  must  return  to  bailor,  and  not  to  place  whore  got  property,  302,  45S 

and,  if  instructed  iiot  to  deliver  except  on  written  order,  must  not  ^^ 
deliver  even  to  wife 


918  IIS-DEX. 

BAILMENT— CoJiJmncd;  pagk. 

demand  necessary 458 

unless  delivers  to  third  person 459 

infant  hired  horse  for  one  place,  and  drove  to  another 459 

bailee  making  fixture  of  personal  property 4G0 

good  defense,  that  propei'ty  belonged  to  third  person,  and  he  took  it,  308,  666 

or  taken  under  process  against  true  owner 308,  6(>6 

and  so,  if  taken  under  process  against  bailor ; 308,  666 

if  latter  immediately  notified  thereof 308,  666 

though  not,  if  guilty  of  negligence  in  not  delivering 666 

or  do  not  notify  bailor 666 

consignor  directed  to  be  delivered  to  third  person 666 

rights  of.  in  regard  to  horse  hired  on  Sunday 674 

watchmaker,  for  watch  left  with  him  for  repairs 853 

See  Bank  ;  Carrier  ;  Railroad. 
BANK: 

when  and  how  president  of,  may  sue 96 

when  and  how  bank  may  sue 96 

liable  for  disclosing  state  of  customers'  accounts 303 

not  liable  for  deposit  until  demand 323 

unless  right  denied 323 

recovery  on  lost  bank  bills 3G9 

no  warranty  by,  though  says  to  drawee,  holds  bill  of  lading 471 

liability  for  loss  of  box  or  valuables  intrusted  to,  for  safe-keeping. .  .303,  853 

BANKRUPT  DISCHARGE: 

if  foreign  debtor  must  plead  facts  showing  validity  of 666 

how  domestic  pleaded 666 

not  good  defense  to  action,  to  rescind  for  fraud 666 

good,  though  creditor  had  no  notice,  if  neglect  not  willful  or  fraudulent,  666 

so,  if  creditor  consented  to  omission 666 

if  neglect  to  notify,  willful  or  fraudulent,  invalid 666 

if  too  late  to  plead,  may  have  i-elief  by  motion 853 

BANKRUPTCY : 

in  action  on  contract  barred  by  discharge,  must  count  on  new  promise,  206 
how  and  when  assignee  of,  may  bring  trover o 213 

BAR: 

answer  in,  when  to  merits 496,  500 

BASTARD : 

putative  father  paying,  believing  mother  pregnant 378 

when  mother  of,  may  recover  for  services 400 

promise  of  father  to  pay  mother,  if  will  not  charge  with 426 

BILL  OF  EXCHANGE: 

averment  and  proof,  where  payable  at  particular  place 303 

writing,  "payment  stopped"  on 334 

parties  to,  may  be  jointly  sued 124 

how  far  applies  to  one  non-negotiable 125 

does  not  apply  to  guarantor 125,  127 

See  Checks;  Lost  Bills  of  Exchange;  Promissory  Notes. 

BILL  OP  LADING :    See  Commission  Merchant. 

BLACKMAILING : 

editor  liable  for  charging  police  officer  with 678 

BLANK: 

name  of  obligee  so  left ' ^04,  835 

maker  of  check  or  note  negligently  leaving 672,  864 

name  of  payee  in  blank 699 

BOAT: 

lien  for  raising  sunken 422,  874 


INDEX.  919 

BONA  FIDE:  paoe. 

what  purchaser  claiming  to  be,  must  aver  and  prove 394 

that  partj'  is  a  bona  fide  purchaser  must  be  pleaded 5G-1,  .^.')i 

and  must  allege  want  of  notice  at  time  of  payment '>VA 

not  sufficient  to  secure  payment :")(>1 

pledpree  is  not  a  bona  fide  holder  to  shut  out  equities 691,  KR7 

when  note  overdue 69:i 

of  ne2;otiable  paper  when  "  payment  stopped  "  erased .'(OS 

only  entitled  to  be  protected  for  amount  paid 886,  887 

evidence  paid  only  part,  admissible  on  question  of b8G 

BOND: 

to  expend  certain  sum  for  support 303 

liability  and  damages  on  bond  to  indemnify  or  pay 303 

allegation  on,  where  condition  may  elect  all  due  on  breach , . . .  ;>04 

with  blank  for  name  of  obligee 304 

such  bond  may  be  refoi-med 304 

for  honesty  of  another  (see  p.  344) 304,  896,  897 

when  recovery  to  be  for  penalty  of 854 

See  Covenant;  Surety. 
BREACH: 

how  to  be  alleged 170,181,182.183,  304 

allegations  as  to,  to  be  liberally  construed '^''^ 

when,  of  warranty,  particular  kind  of  trees  or  will  bear  particular  fruit,  901 

See  Undertaking. 

BREACH  OF  PROMISE: 

will  not  lie  if  woman  falsely  represent  has  never  been  married 326 

that  plaintiff  prostituted  herself  after  promise •'>6+ 

that  plaintiff  in  habit  of  becoming  intoxicated o')7 

lies,  though  defendant  married,  if  plaintiff  ignorant  thereof 854 

whether  promise  to  marry  after  wife's  death  valid 854 

BROKER : 

action  against,  for  fraudulently  selling 142 

when,  for  sale  of  real  estate,  etc.,  may  recover 304,  306,  854,  855 

purchasing  scrip  and  transferring  to  own  name 310 

remedy  in  such  cases '^l*^ 

necessity  of  notice  if  intends  to  sell 393,  854 

if  sells  less  than  price  histructed  to,  liable 66^ 

how  and  when,  may  sell  for  not  keeping  up  margin (;85 

sale  to  be  delivered  at  seller's  option ^^ 

tender  on  agreement  to  purchase  bonds _. '<''_'3 

wTien  cannot  revoke  agreement  to  purchase  as  without  notice 854 

if,  sells  without  right,  chargeable  with  profits 8.55 

bound  to  render  account,  and  if  refuses,  loses  lien ■_•  •  85.5 

of>-|-farl     ■fov   V)otll    DtirtlGS  ••       •       ••••>■■ ,••,..••••••■•••••••••••••     ^"^^     tSt)i3 

in  action  for  selling,  must  show  property  has  since  risen  in  value  beyond 

price  sold  for ®^ 

See  Notice. 
BUILDING : 

liabilitv  of  owner  for  extra  work •  •  •  *^^ 

pulling"  down,  without  propping  neighbor's *•*•'.  <^>  •> 

Sec  Architect ;  Covenant;  Highways;  Landlord  and  Tenant; 
Work  and  Labor. 

BY-LAW: 

how  pleaded ^^ 

See  Ordinance. 

CANADIAN  JUDGMENTS . 

defendant  in,  may  set  up  any  defense GfiJ 

except  when  interposes  and  litigates  it ""' 

CANAL  COMPANY: 

liability  for  rock  falling  into  and  injuring  boat 385,  386 


920  INDEX. 

CANCELLATION:                                                                                               pagb. 
of  obligation  given  by  surety 699 

CARGO : 

lien  on,  for  raising  sunken  vessel 679 

CARRIER: 

when  party  in  interest 74 

complaint  against 218,  219 

not  liable  for  delivery  to  fraudulent  vendee 306 

liability  for  storing  goods  before  destination  though  dispatch  be  dan- 
gerous    306 

may  assume  package  of  value  seems  to  be 306 

when  not  liable  for  special  damages  not  transporting  within  definite 

time 308 

property  sent  mixed  and  wrong,  property  delivered 306 

liability  for  delivery  to  wrong  party,  but  at  place  to  which  directed 307 

but  see  Price  v.  Oswego,  etc.,  B.  R.  Co.,  50  N.  Y.  213. 

liability  for  fraudulently  repx'eseuting  character  of  vessel 307 

when  not  liable  for  goods  taken  by  process  of  law 308.  666 

duty  in  such  cases 3ilS,  666 

not  liable  for  delivering  voluntarily  to  true  owner 308,  666 

duty  of,  as  to  delivery  and  notice  of  arrival 308 

damages  for  not  carrying  by  ship  contracted  to 308 

or  within  agreed  time 308 

remedy  against,  for  goods  lost 457 

may  insist  upon  carrying  and  full  freight 485 

must  notify  consignee  of  arrival  of  goods,  and  if  not  called  for,  store 

them 667 

but  not  allowed  to  store  until  made  efforts  to  find  consignee 856 

if  from  foreign  port,  must  notify  and  store  according  to  custom 667 

if  owner  signs  statement  of  value  of  property  estopped 670 

if  sued  for  conversion  not  sufiicient  to  prove  negligent  loss 841 

in  such  case  should  count  upon  defendant's  duty  and  neglect  thereof. ,  841 

but  in  such  case,  proof  that  carried  property  but  refused  to  deliver, 

insuflicient 841 

consignee,  after  notice,  bound  to  take  away  promptly 836 

if  two  occupy  same  warehouse  delivery  therein  by  one  good  to  other. . .  856 

if  exempt,  except  for  fraud,  etc.,  plaintiff  must  show 856 

liability  for  not  unloading  cattle 856 

though  first  carrier  contracts  for  restricted  liability,  second  not  pro- 
tected    856 

unless  first  agrees  to  carry  through 857 

liability  for  not  delivering  goods  at  particular  time 302 

Sec  Express  Company ;  Impossibility;  Negligence;  Railroad. 

CASE : 

distinction  between  and  trespass 452 

CASE,  ACTION  ON : 

what  it  was,  and  how  far  still  exists 216-221 

CAUSES  OF  ACTION : 

must  be  separately  stated  and  numbered 148,  264 

exceptions  to  rule 265 

remedy  if  not 148.  264,  274 

each  must  be  perfect  and  complete 149,  262-264 

what  indicates  separation  of 149,  262-264 

single  cause  of  action  caimot  be  separately  stated 149,  262-268 

all  consequences  of  one  injury  are  but  one  cause 149,  150,  262-205 

may  set  forth  all  grounds  of  liability. 265 

otherwise,  if  not  one  transaction 265 

should  show  how  arose  out  of  same  transaction 266 

when  and  how  far  more  than  one  count  on  sanie  cause 150,  265,  266 

remedy  in  such  case 1 50 

remedy  when  several  causes  joined  in  one  count 151,  264,  274 

if  alleged  with  r.nutimirmdo,  may  compel  separate  statement  of 222 

what  is  a  separate  statement  of 63U,  640 


INDEX.  921 

CAUSES  OF  ACTION— Conti/werf;  page. 

if  uot  separately  stated,  remedy  by  motiou 7r>3 

to  be  numbered  aud  separately  stated 809 

remedy  if  uot ' ' .  gog 

See  Demurrer;  Joinder  of  Actions. 
CESTUI  QUE  TRUST: 

suing  trustee 117,  127 

See  Trust. 
CERTAIN": 

issues  must  be,  aud  meauing  of  term 782 

CERTAINTY : 

degree  of,  required 228,  257,  259 

remedy  for  uucertaiuty  'MS 

CHARGE  AND  PRETENSE : 

See  Irrelevant  Matter. 

CHARITY: 

court  will  not  marshal  assets  in  favor  of 373 

CHATTEL  MORTGAGE: 

when  creditor  may  sell  interest  of  mortgagor 301 

mortgagee  selling,  not  liable  to  receiver,  subsequently  appointed 4G1 

in  action  for  couvei-siou,  defendant  may  ask  to  redeem  587 

See  Redemption. 

CHECKS: 

payable,  to  bills  payable  or  order 308 

words  "payment  stopped"  erased  aud  transferred 308 

See  Payment. 
CHILD: 

injured  by  machinery 386 

injured  by  gunpowder  sold  to 386 

CITY:    See  By-Law;  Municipal  Corporation;  Town. 

CLAIM  AND  DELIVERY: 

lies  in  all  cases  where  replevin  did 308 

property  returned  before  service  of  summons 309,  857 

returned  after  suit,  but  before  trial 309,  857 

in  cases  of  fraudulent  purchase 309 

purchaser  aud  assignee  may  be  sued  jointly 309 

lies,  though  party  has  parted  with  possession 309 

unless  purchased  as  agent •  •  •  •  -^ 

requisites  of  complaint  for 309,  857 

when  will  not  lie  for  scrip 310 

while  suit  for,  pending,  plaintiff  cannot  maintain  against  defendant 310 

complaint  must  show  right  of  property  and  of  possession 857 

See  Replevin. 

CLAIMS  TO  REAL  PROPERTY : 

how  determined 237 

what  defenses  may  be  set  up fj^^ 

may  proceed  by  notice  under  statute -^j^ 

same  right  to  amend  as  in  other  actions 8;>7 

what  complaint  must  show °"'^' 

CLOUD  UPON  TITLE : 

must  not  show  invalidity  on  its  face ;^|0 

but  is,  if  evidence  alinudc  required • \]^ 

as  where  deed  should  have  b<r.en  to  plaintiff  i:istead  of  defendant .;10 

to  determine  ainouut  due  on  niortgiige •  • ;'|J' 

and  lies,  though  comphiir.t  erroneously  :il!.';;e  fully  paid ,   -^lU 

remedy  for,  by  tax *^* 

See  Qij'iA  Timet. 


922  INDEX 

COLOR:  PAGE, 

giving  color  in  plea  by  confession  and  avoidance 811,  812 

COMMISSION  MERCHANT  OR  FACTOR: 

whien  cannot  set  up  rights  of  tliird  pei'son 253 

liability  on  contract  to  sell  for  highest  market  price 311 

liability  in  absence  of  special  agreement 311 

liability  under  special  instructions ^. . .  312 

rights  and  liabilities,  where  has  made  advances 312,  858 

complaint  in  action  to  recover  deficiency 313 

if  sells  for  less  than  price  instructed  to,  liable 667 

consignee  I'efused  to  accept  draft,  sold  property  and  credited  to  con- 
signor     857 

merely  making  advances  does  not  prevent  consignor  from  revoking 

authority 858 

agreements  not  to  do  so  may  be  shown  by  circumstances 858 

See  Broker;  Factor. 

COMMISSIONERS  OF  HIGHWAYS : 

when  can  bind  successor  by  borrowing  money 311 

when  liable  for  neglecting  to  repair  highways 311,  8G9 

when  may  compel  railroad  company  to  restore  highways 311 

or  may  proceed  by  mandamus 311 

See  Highways. 

COMMON  COUNTS: 

how  far  maybe  used 197-204 

COMMON  OR  GENERAL  INTEREST : 

what  parties  may  join,  and  what  is 81-84,  85-87,  97,  894 

COMPLAINT : 

requisites  of  declaration  under  old  practice 153,  162 

requisites  of  bill  in  equity  under  old  practice 153,  162 

requisites  of  complaint  under  Code 153 

requisites  of  title 154 

name  of  court 1-54,  155 

whether  cured  by  naming  in  summons  accompanying  complaint 155 

county  designated  for  trial ._ . .  154 

names  of  parties 154,  155,  158 

complaint  good  if  these  requisites  in  body  of  complaint 154 

how  defect  in  either  reached 154,  155 

after  motion  to  correct  cannot  be  amended  without  paying  costs 154 

if  court  of  limited  jurisdiction,  county  need  not  be  named 154 

should  show  capacity  in  which  parties  sue  or  are  sued 155,  158 

how  such  capacity  expressed 155,  156 

when  capacity  not  restricted 15() 

if  sues  generally,  may  declare  in  representative  capacity 1.56 

if  sues  as  representative,  cannot  declare  generally 156 

when  severally  liable,  may  declare  against  a  portion  of  the  defendants,  156 

if  plaintiff  ignorant  of  defendant's  name,  how  described 157,  158 

how  described  in  partition 158 

allegations  as  to  such  parties 158 

does  not  apply  if  plaintifif  knows  name 157 

when  party  known  by  two  names,  may  be  sued  by  either 1,57 

how  child  not  named,  designated 157 

if  variance  in  name  between  summons  and  complaint,  how  reached....  157 

must  correspond  with  the  summons  as  to  relief  asked 158 

how  variance  reached 159 

how  waived 159 

form  of  summons  as  to  relief  asked 158 

how  facts  to  be  stated 161-163 

all  facts  which,  if  denied,  plaintiff  must  prove  to  recover 163 

aU  material  and  issuable  facts 163 

must  show  consideration  of  contract 164,  165,  16(> 

how  to  be  alleged 164,  167 

in  some  cases  implied,  and  when 164,  166,  167 

in  action  against  carriers Iftl 


INDEX.  923 

COMPLAINT  —  Continued.  page. 

order  not  negotiable ^ |C4 

note  not  negotiable '  J|^ 

mutual  promises •  • ■•••■; .;,- 

considei-ation  may  be  executed  or  executory,  and  now  stated Ibo 

variance  between  allegations  and  proof 167 

if  nominal  stated  good,  though  not  paid Iw 

recital  of,  estops  party ij^ 

when  surrender  of  paper  furnishes ^^ 

when  compromise  furnishes |1j|' 

allegations  as  to j '  }| 

compromise  not  to  oppose  will jjy^ 

"  value  received  " |x^ 

"  ao-ree  "  

assumption  of  mere  ideal  liability |||8 

assuming  inadequate  liability ijjjg 

debtor's  promising  to  pay  creditor's  expenses i»)» 

expenses  examining  property  as  security  for  loan i^ 

expenses  procuring  money  to  loan ■  •  •  •  j"^ 

to  forbear  prosecution  of  a  claim ^^^  ^^» 

ti-ansf er  of  void  instrument |^^ 

to  be  recanted  from  void  contract |"' 

where  specific  performance  could  be  enforced i«» 

signing  obligation  of  third  person  after  delivery ibJ 

promise  to  keep  money  already  due  and  pay  interest io^ 

promise  to  forbear  in  consideration  of  new  security i»'J 

deduction  of,  will  give  security t:^f 

plaintiffs  paid  defendant's  tax  by  mistake i»,-f 

assignee  of  lease  assigned  it,  reserving  rent ^J^j' 

lessor  taking  covenant  to  pay •  •  •  •  -J-: ■  \ },:/  , qo 

breach  must  be  aUeged 170,181,18.,,  l»d 

how  promise  to  be  aUeged  if  exception •  •  •  •  •  ••  -^'^ 

if  contract  to  be  performed  after  happening  of  particular  event,  how  ^^^ 

alleged , i^'  ,^i 

how  reasonable  time  alleged '  ,  „, 

how  fact  that  debt  due  shown •••• • ,i, 

how  liabUity  of  members  of  .ioint-stock  company  to  be  averred ui 

allegations  in  actions  upon  promissory  notes •  •  •  •  •  •  •  •i^'i^  |^- 

as  against  indorser ■'•''^'  ■"■'  '  ,~./  ■,^., 

to  show  plaintiff  is  party  in  interest •  • :fi-'  ^'' 

if  T^nvtv  has  nevfonned  contract,  may  declare  in  assumpsit X(i,  iw^ 


written  instruments,  now  ueuiaicu.  upui^  i^j  ^^fj -■    ^^.^  IM~196 

how  by  substance ^  '      "'  i -<)_iJ5i 

conditions  precedent,  how  alleged 179-181 

performance,  how  alleged 2--g 

how  refusal  alleged jgQ 

aUegatiou  and  proof  of  excuse ' '  jgQ 

allegations  as  to  waiver i^o"  jgj^ 

tender,  allegation  of,  and  proof  of  excuse •  ^^ 

how  modification  of  contract  shown -^^^ 

complaint  must  allege  a  promise ■ "  • "  jg^ 

and  how ' " ' " '  1,^4 

in  case  of  contract  by ■•  ■■ isi-lOG 

facts  and  not  conclusions  to  be  pleaded • "  jg4_i.)t5 

what  are  facts •■■■• 181-liK) 

to  be  pleaded  according  to  legal  effect '.'.'..'.'.  !l84-19ti 

what  is  conclusion • 1^7 

evidence  of  facts  not  to  be  pleaded •  •••••••;•  ••■■■  V'  VVudered "  •  •  1^ 

when  facts  pleaded,  any  proper  judgment  thereon  may  be  renderea ....  1^ 

every  fact  which  plaintiff  must  prove  to  be  alleged '.'.'.'..'.'.'.  224 

answer  may  supply  defects  in .•J27-2;i9 

in  equitv 

See  Relief. 

COMPROMISE  •:  2'.U 

offer  of.  when  admissible  to  show  scienter 1 '. ".  349 

agreeing  to  pay,  Lf  will  not  oppose,  will 


924  INDEX. 

COMPROMISE  —  Cmitinued :  pagk 

if  will  not  move  to  set^side  sale 350 

when,  of  former  suit  should  be  pleaded  as  former  suit  pending 496 

judgment  for  part  payment,  and  agreement  to  pay  balance 560 

See  Accord  and  Satisfaction;  Consideration. 

CONCLUSIONS : 

not  to  be  pleaded,  and  what  are 184-196,  216,  269,  570 

may  be  stricken  out  as  irrelevant 592 

that  defendant  claims  interest  is 237 

CONDITION : 

when  must  convey  subject  to,  and  not  to  covenant  running  with  land. .  405 

CONDITIONS  PRECEDENT : 

how  aUeged 179-181 

not  to  be  set  out  in  hcec  verba 228 

COiroONATION: 

what  revives 142 

should  be  pleaded  in  action  for  divorce,  and  is  a  defense 669 

CONFESSION  AND  AVOIDANCE: 

former  plea  by  way  of 500 

admission  in,  to  be  taken  as,  if  otherwise  denied 799 

what  is  good  plea  by 811,  812 

CONSEQUENTIAL  DAMAGES :  See  Special  Damages. 

CONSIDERATION : 

when,  must  be  alleged 164,  165,  166,  858 

how  to  be  alleged 164,  167 

in  some  cases  implied,  and  when 164,  166,  167 

in  actions  against  carriers 164 

order  not  negotiable 164 

note  not  negotiable 166 

mutual  promises 165 

may  be  executed  or  executory,  and  how  stated 165 

variance  between  allegations  and  proof 167 

if  uomiual  stated,  good,  though  that  not  proved 167 

recital  of,  estops  party 168 

when  surrender  of  party  furnishes 168 

when  compromise  furnishes 168 

allegations  as  to  compromise 170 

"  value  received  " 168 

"  agree  " 168 

assumption  of  mere  ideal  liability 168 

assuming  inadequate  liability 168 

debtor  promising  to  pay  creditor's  expenses 168 

expenses  to  examine  property  as  security  for  loan 168 

expenses  procuring  money  to  loan 168 

to  forbear  prosecution  of  a  claim 168,  169 

transfer  of  void  instrument 168 

of  ferry  franchise  held  ultra  vires 8,'>8 

to  be  recanted  from  void  contract 168 

where  specific  performance  could  be  enforced 169 

signing  obligation  of  third  person  after  the  delivery 169 

promise  to  keep  money  already  due,  and  pay  intei'est 169 

promise  to  forbear  in  consideration  of  new  security 169 

deduction,  if  will  give  security 169 

plaintiff  paid  defendant's  tax  by  mistake 169 

assignee  of  lease  assigned  it,  reserving  rent 169 

lessor  taking  covenant  to  pay 169 

mortgagee  assigned  mortgage,  taking  note  for  interest 169 

if  will  not  move  to  set  aside  sale 350 

agreement,  after  lease,  to  repair  without 364 

tenant  selling  goods  at  auction  on  landlord's  promise,  insufficient. ..365.  6;>7 
when  for  warranty ^<2 


INDEX.  025 

CONSIDER ATIOX  --  C'  ni'nurd :  pack. 

want  of,  uoed  not  be  allesed  where  plaintiff  must  prove 507 

if  dereulimt  relies  on  failure  of,  must  plead  it GGT 

so  partial  to  be  set  up 550,  563,  609 

and  must  allege,  whether  partial  or  total 669 

so,  if  interposes  an  aj^reenient,  which  does  not  show,  must  aver 607 

promise  by  lessor  to  make  deduction  from  rent,  for  damage  from  leaks, 

without •••:,••  ^'^ 

bona  Jidc  compromise  furnishes  good 168,  170,  668 

and  plea  tUat  nothing  due,  no  defense 668 

claim  must  be  doubtful,  and  not  clearly  without  foundation 668 

surrender  of  agreement,  ecpiifcy  would  compel  to  surrender  not. 668 

agreement  to  forbear  prosecution,  without  attempt  to  compromise 668 

agi'eement,  if  will  not  oppose  will 169,  349,  668 

but  must  aver  and  show  some  ground  for  opposing 668 

agreement  to  pay  for  releasing  from  void  contract 608 

agreement  by  one  joint  debtor  to  pay  entire  debt,  good _ 608 

agreement  in  considei'ation  of  marriage,  if  no  divoi'ce,  good  considera- 
tion, though  husband  impotent • 668 

promise  to  pay  note,  to  wuich  name  forged,  without  consideration 669 

in  suit  on  note  for  patent,  another  issued  after  given 669 

if  sets  up  entire  want  of,  fails  if  any,  however  small 669 

debtor  promising  not  to  pay  till  certain  time,  and  pay  interest,  not  good 

for  agreement  to  extend  time  of  payment 672 

nor  is  payment  of  part  amount  duo 072 

See  Accord  and  Satisfaction  ;  Illegal  Contract  ;  Undertaking. 

CONSIGNOR  AND  CONSIGNEE : 

which  real  party  in  interest 74,  858,  859 

when  carrier  not  liable  for  delivering  to  third  person 666,  8.50 

how  far  that  property  shipped  in  consignor's  name,  by  mistake,  good...  683 

CONSOLIDATED  ACTION: 

no  new  complaint  necessary  in 312 

ho»v  tried,  and  judgment-roll  in 312 

costs  of  only  one  action,  unless  special  provision 312 

CONSPIRACY : 

employer  compelled  to  pay,  to  prevent  stopping  business 070 

CONSTABLE: 

what  actions  against,  may  be  joined HO 

CONSTRUCTION : 

if  agreement  to  lease  for  best  rent 4;^2 

)'  equivocal  to  be  most  unfavorable  to  party  pleading 8t)3 

this  rule  applies  only  bef oi-e  answer 8<« 

but  language  to  have  reasonable  intendment ^^ 

'  f  expression  capable  of  two  meanings,  that  to  be  adopted  which  supports  80t 
if  can  be  held  good  by  any  state  (^f  facts  consistent  with  averments,  to  be  804 

if  alleges  enjoyed  premises  need  not  allege,  did  so  amtinualhi 804 

extent  of  rule  that  words  to  be  construed  according  to  ordmary  mean- 

il^tr o04 

if  capable  of  two  meanings,  that  to  be  adopted  which  upholds 8(|4 

if  ambiguous,  may  be  explained  by  context Vi-  ol^ 

to  be  liberal  with  a  view  to  substantial  justice «  i'k    -n- 

this  applies  only  to  its  effect e  -  o  !- 

and  does  not  create  a  rule  as  to  sufficiency un-  u,,- 

will  not  uphold  bad  pleading ^Irlir 

mav  allege  is  legal  owner  and  holder ^  f    ''' 

con'struction  of  allegation  that  claim  is  "  due  " ^"'''I^^i 

of  allegations  of  breach aAoJii? 

special  rules  applicable  to  pleadings eu»-oi/ 

CONSTRUCTION  OF  DEEDS: 

grantor  of  trust  deed  cannot  maintain  action  for 312 

trustee  or  one  requiring  execution  of  trust  may 'l- 


926  iifDEX. 

CONSTRUCTIOIS"  OF  WILLS:  page. 

who  may  maintain  action  for 313 

what  complaint  for.  should  show 313 

sometimes  given  ou  petiiion 313 

so  in  suit  for  legacy 313 

CONTINUANDO : 

several  injuries  may  be  proved  under 222 

CONTINUING  DAMAGES: 

when  settlement  for  injury  bars  action  for  subsequent  damages 663 

CONTRACT :  See  Agreement  ;  Covenant  ;  Illegal  Contract  ;  Work  and 
Labor. 

CONTRACTOR:  See  Work  and  Labor. 

CONTRIBUTION : 

none  where  onesuretypays  without  allowing  other  to  discharge  himself ,  383 

notice  to  one  who  has  agreed  to  assist  in  repairing  dam 393,  477 

where  one  co-surety  seeks 393,  394 

owner  of  one  parcel  paying  lien  of  land  on  several 468 

CONVENIENT: 

promise  to  pay  when 193,  410,  693 

CONVERSION: 

one  trustee  cannot  sue  co-trustee  for Ill 

demand  after  suit  may  be  evidence  of  conversion  before 309 

owner  intrusting  bill  to  one  who  advances  money  on  it 313 

by  purchaser  who  refuses  to  pay  or  return  property 313 

if  vendee  has  paid  part,  may  pay  balance  before  vendor  sells 313 

vendor  liable  for  retaking  property  if  no  fraud  by  purchaser 314 

if  pledgee  guilty  of,  need  not  tender  what  is  due  him 703 

See  Trespass  ;  Trover. 

CONVEYANCE : 

only  void  as  to  so  much  of  lands  as  possessed  adversely GG4 

See  Condition. 

COPYRIGHT : 

may  use  book  for  obtaining  information 314 

common-law  riglit  of  author 314 

•   when  and  how  far  State  courts  have  jurisdiction 314 

See  Author. 

CORPORATIONS : 

remedy  of  receiver  of  insolvent .129,  141 

allegations  as  to  incorporation 223 

in  case  of  foreign 226 

unnecessary  to  prove 226 

except  foreign 226 

need  not  allege  incorporation 314,  519,  743 

exceptions  to  rule 314 

liability  for  stock  transferred  on  forged  transfer 335 

when  may  maintain  libel 367 

liability  of,  for  malicious  pi'osecution 371 

when  officer  cannot  recover  for  services 491 

denying  not  sufficient,  must  plead  nul  t.k'l  corporation 519 

rule  does  not  apply  to  foreign  corporations ., 519 

service  here  on  officer  of  non-resident. 741 

creditor  of,  suing  to  prevent  consolidation 859 

where  discretion  neithev  creditor  nor  stockholder  can  sue Sr^g 

where  not  liable  for  fraud  of  directors  as  to  value  of  stocks 894 

when  liable  for  agent's  entrv  and  taking  earth 89y 


INDEX.  927 

COSTS :  PACE. 

when  party  not  liable  for,  as  damages 240 

when  surety  may  recover ...  303 

when  party  guilty  of  negligence,  not  liable,  for 389 

when  second  mortgagee  not  bound  to  pay 413 

if  not  taxed  illegal  may  be  recovered  back 468 

otherwise  if  taxed 408 

when  must  be  paid  on  discontiiuiance 497 

allegations  affecting  right  to  proper 584,  5!J3 

when  defendants  only  entitled  to  one  bill  of,  though  answer  separatelj',  610 

COUNSEL:  See  Attorney. 

COUNTER-CLAIM : 

on  ground  of  defect  of  goods 563 

must  be  pleaded 564 

defendant  not  bound  to  interpose 588 

but  if  has  suit  and  so  interposes,  is  bound  to  elect 588 

if  judgment  i-ecovered  on,  will  be  stricken  out  on  motion 588 

defendant  may  interpose 012 

definition  of 612,  616 

in  action  for  goods  sold,  damages  on  warranty 610 

must  be  a  cause  of  action  against  the  plaintiff 616,  617 

set-off  against  assignor  is  not 010 

and  statute  of  limitations  need  not  be  replied  in  such  case 680 

if  may  operate  as  payment  or  as  counter-claim,  held  to  be  former 617 

if  asks  to  recoup,  held  to  be 617 

includes  set-oflf 612 

which  must  exist  at  commencement  of  action 017 

whether  accruing  after  suit,  but  before  answer,  may  be  allowed 059 

Code  has  enlarged 017,  635 

if  merged  in  judgment,  and  that  at  too  late  a  day,  is  not 618 

before  Code,  if  unliquidated,  was  not  set  off. 018 

as  for  breach  of  covenant  by  landlord 618 

nor  in  action  on  warranty _• 018 

in  action  against  receiver,  cannot  set  off  claim  not  due  when  appointed,  018 

allowed  in  equity  as  at  law 618 

defendant  must  own,  when  suit  commenced 618 

installment  of  bond  becoming  due  after  suit 618 

sometimes  allowed,  though  not  due 618 

as  in  cases  of  insolvency 618 

under  Code,  not  necessary  plaintiff's  claim  should  be  liquidated 619 

nor  defendants 619 

so  an  equitable  set-off  may  be  interposed ■-  019 

as  the  balance  on  a  partnership  accounting 61i),  037,  859 

but  a  set-off  is  not  allowable  in  tort 019 

must  be  due  defendant,  or  a  defendant  as  to  which  several  judgment,  620 

one  such  defendant  may  set-oflf  individual  claim _•  •  •  020 

a  surety  cannot,  at  law,  avail  himself  of,  by  principal  debtor 621,  8,59 

nor  can  a  subsequent  purchaser ;  •  •  ^-^ 

but,  if  insolvent,  may  in  equity _•  i^-  ■^.■-~'  ^5^ 

or  may  interpose  equitable  defense 622,  C>]^i,  ©.w 

may  compel  creditor  to  bring  in  debtor 622,  8o9 

when  set-oflf  may  be  made '.'--'  ^1'^ 

when  may  set  up  damages  for  breach  of  warranty 6--,  8;m 

so  that  note  given  for  goods  never  delivered O-^-j 

or  paid  for  by  sale  by  property -. y-^' 

debtor  cannot  show  he  had,  and  surety  paid  without  allowmg  to  set  up,  bS4 
equitable  set-offs  allowable .- '^~y 

but  must  be  such  an  equity  as  could  be  enforced  by  action l)~-i 

rights  against  and  in  favor  of  assignee V  ' '  'u 

if  right  in  favor  of  executor  or  administrator  on  cause  after  death,  can- 

not  set  up  counter-claim  against  deceased «~^^ 

if  pledgee  allows  pledgor  to  sell,  cannot  set  up  one  aganist  latter «i-.i 

unless  purchaser  did  not  know  facts '»^ 

miatters  in  recoupment  may  be  set  up |;,-^ 

as  for  breach  of  implied  contract '™ 

80  damages  in  cases  of  fraud "^ 


928  INDEX. 

COUNTER-CLAIM  —  Continued  :  page. 

breach  of  warranty    625 

but  party  must  cffer  to  return 626 

must  be  in  nature  of  cross  action 628 

though  need  not  ha\^e  been  liquidated 623,  627 

under  old  system  not  a  complete  bar 626 

if  exceeded  plaintitf' s  claim,  cross  action  uecessarj' 6J(j 

action  for  rent,  tortious  act  of  landlord  in  making  repairs 627 

what  included  in  recoupment  under  Code 627 

what  is  "connected  with  the  subject  of  the  action  " 627,  628 

object  to  extend  to  equitable  set-otf 628,  629 

that  one  party  insolvent  fx'equently,  ground  for  cross  action 629 

otherwise,  if  assigned  before  clue 62y 

recoupment  cannot  grow  out  of  independent  contracts 629 

may  recoup  for  fraud  in  making  of  contract 630 

but  not  fraud  in  subsequent  transaction 630 

defendant  may  have  judgment  for  excess 630,  632 

in  ejectment,  defendant  may  set  up  equitable  defense 6o0 

iu  trover,  may  enforce  lien 631 

in  suit  to  restrain  foreclosure,  defendant  may  have  one 631 

so,  in  foreclosure,  defendant  ask  to  have  canceled 631 

to  recover  money  paid  on  contract,  may  have  specific  performance 631 

in  action  on  contract,  may  set  up  mistake  and  enforce 631 

so  iu  suit  to  restrain  turning  of  water-course 631 

in  action  to  recover  rent,  cost  of  making  i-epairs  landlord  agreed  to 

make 633 

money  lost  at  betting 633 

iu  action  to  rescind  contract  for  lease  claim  by  landlord  for  rent 633 

expenses  of  recovering  goods  abandoned  under  insurance  policy 633 

action  to  recover  money  loaned  on  stock,  what  is  to  be  credited  on 

account  thereof - 633 

bank  with  which  assignee  deposited  may  set  up  assignment  fraudulent,  633 
that  owner  of  house,  formerly  kept  as  house  of  ill-fame,  let  it  conceal- 
ing fact 633 

in  action  for  rent,  damages  from  soot  from  landlord's  engine 633 

in  suit  to  recover  moneys  collected  by  insurance  agent,  may  set  up 

damages  from  being  improperly  discharged 633 

in  mortgage  foreclosure  that  plaintiff  agreed  to  release  part  of  premises 

on  payment  of  part  and  refused 633 

that  plaintiff,  as  defendant's  agent,  received  certain  moneys  which  he 

converted,  and  for  which  refused  to  account 633 

in  action  for  breach  of  contract  to  convey  breach  by  plaintiff  and  spe- 
cific performance 633 

in  ejectment,  an  equitable  title  iu  defendant ; . . .  633 

in  partition  that  defendant  recover  possession  and  that  his  enjoyment 

be  perpetuated 633,  634 

that  deed  or  will  lost,  and  his  own  exclusive  right  to  possession 633,  634 

any  thing  which  formerly  matter  for  equitable  cross-bill 634-G36 

in  claim  of  lien  for  purchase-money  defendant  may  ask  rescission 634 

in  suit  for  specific  performance,  that  agreement  be  surrendered 634 

arising  after  suit  but  before  answer 635 

mortgagor  rendered  services  for  mortgagee  to  be  applied  on  mortgage. .  665 

if  broker  sells  for  less  than  instructed  to,  damages  are 667 

none  in  action  to  restrain  trade-mark 859 

action    agaiust  assignee,   expenses    in  repairing  steamboat  and  legal 

expenses 633 

though  defendant  may  be  credited  therewith 633 

in  tort  for  convei-sion,  indebtedness  by  plaintiff  to  defendant 633 

money  loaned  to  State  officer 640 

citizen  cannot  set  up  against  State 640 

damage  from  leaky  condition  of  roof,  though  landlord  agree  to  allow. ..  667 

defendant  not  bound  to  interpose 638 

if  constitutes  an  independent  cause  of  action 636 

nor  will  suit  for  purchase-money  be  stayed  in  suit  on  warrai\ty 673 

first  action  not  ordinarily  stayed  to  enable  defendant  to  establish  in 

another 636 

nor  can  judgment  in  first  be  impeached  by  Icnown  equitable  defense G36 

in  suit  for  money,  not  compelled  to  ask  partnership  accounting 637 

but  caunot  interpose  and  still  bring  independent  suit 637,  638,  639,  673 

barred  if  set  up  and  defendant  do  not  appear 637 


INDEX.  .  929 

COUNTER-CLAIM  —  Continued :  paok. 

otherwise  if  withdrawn 637 

or  parties  stipuhite,  shaU  not  be  barred W( 

iu  suit  to  restrain  foreclosure,  defeudaut  demaading  foreclosure  cannot 

waive  after  trial "3* 

How  Counter-claim  to  be  Stated: 

to  be  separately  stated ^"'^~^ 

what  is  and  what  is  not  a  separate  statement i;'i» 

in  same  manner  as  if  stating  cause  of  action  m  complaint.   Mi 

defendant  must  become  actor  —  must  ask  affirmative  relief W» 

recoupment  to  be  stated  as  if  independent  action r-ia 

if  ou  instrument  for  payment  of  money. . . . ... ..... . . .......  •  •  • ...  •  • i|^ 

facts  of  set-otl  to  be  stated,  and  not  merely  that  plaintiff  mdebted WU 

not  to  be  stricken  out  as  irrelevant J^>* 

remedy  bv  demurrer  or  motion  to  make  dehnite ''•» 

in  suit  for  unloading  coal  that  part  lost  by  plaintiff's  negligence 695 

in  nature  of  cross-action ;1,|* 

must  reply  statute  of  limitations  ......; -iV  -la    7^-1 

may  reply  counter-claim  to  counter-claim '  ^'*''  ^°'  ijl? 

partial  defense  byway  of  good • ••:•• ••;  '"^ 

demurrer  because  not  between  parties  as  to  whom  several  .ludgment  ^^ 

proper ••■■'• Tfii. 

so  not  connected  with  subject  of  action /.JJ* 

or  does  not  arise  out  of  transaction  in  complaint 'J|* 

set-off,  total  or  partial,  proper 'J^ 

if  set-off  interposed  to  action  for  wrong  may  demur <«** 

See  Equitable  Defense. 

COUNTS: 

how  far  each  must  be  perfect  or  may  refer  to  another oub,  wi 

same  defense  not  to  be  stated  in  different  ways ::;•••;•;  "i* "  7^ 

when  complaint  held  to  contain  several,  though  not  separately  stated..  755 

.    See  Causes  of  Action  ;  Demurrer. 

COUNTY  CLERK: 

did  not  properly  docket  judgment ^^ 

COUNTY  COURT: 

complaint  in,  must  allege  defendant  resides  m  county <*i&,  »bu 

if  more  than  one  must  allege  a  U  so  reside. ...........  •• ••••  ^i? 

whether  appearance  and  answer  waives  right  to  object ^lo,  ow 

COVENANT: 

not  to  remove  hav,  straw,  etc.,  last  year  of  lease ^^^ 

assignee  of  lease  "liable  for  breach  of  covenant ^J" 

of  seizin  brokers  as  soon  as  made,  if  at  all ,,.„ 

not  a  guaranty  judgment  will  not  be  set  aside ^J^ 

damages,  if  lessee  do  not  pay  taxes gjg 

complaint  in  such  cases • 3^.;. 

to  pay  half  expenses  of  party  wall • .  •. .,,- 

one  who  accepts  deed-poll  bound  by  covenants  in ^Ji, 

not  to  use  for  particular  business g^n- 

80  not  to  build  beyond  particular  line 317 

^ien  miSt  con^  Vubj^cV  1}^  cmidMon  andnoV  io"  l^^enaiu ! ! ! ! ! ! ! ! ! ! ! !  405 

when  of  warranty  not  broken  by  water  right '.'.'.'.'..'.'.'.  473 

as  to  right  of  way ■•IL*  V'j 480 

to  draw  off  water  six  days  in  year  runs  with  land 

CREDIT :  jg^ 

sale  ou,  but  refusal  to  give  notes  as  agreed 

CREDITOR:  ,  ^   .  ,„« 

when  may  sue  officers  of  corporation  in  equity  to  compel  parent- . .  ^.  l^ 
if  seeks  to  set  aside  assignment,  other  creditors  not  necessary  parties,  lU,  i-f- 
117 


930  .  INDEX. 

CREDITOR  —  Continued.  page. 

otherwise  to  carry  out  assignment 81,  114,  127 

may  sue  fraudulent  purchaser  and  executor,  e.c 127 

when  and  how  attaching  may  justify 128 

allowing  collateral  security  to  be  lost 3S9 

allowing  policy  of  insurance  to  expire 390 

See  Ckeditor's  Bills;  Receiver. 

CREDITOR'S  BILLS  AND  CREDITOR'S  SUITS: 

when  may  be  brought,  and  requisites  of 128 

against  husband  and  wife,  if  she  die  after  issue  cannot  have  judgment 

for  interest  which  devolves  upon  husband  by  such  death 843 

creditor  reaching  legacy  assigned  for  inadequate  consideration 317 

though  assignment  not  set  aside 317 

allegations  necessary 317,  860 

to  remove  obstruction 318,  860 

cannot  reach  property  of  foreign  government 318,  860 

suit  by  one  in  behalf  of  others,  what  creditors  may  control 318 

complaint  against  assignee 318 

assignment  by  surviving  partner  to  pay  individual  debts 318 

cannot  reach  cause  of  action  or  judgment  for  exempt  property 330 

otherwise,  if  proceeds  invested  in  property  not  exempt 330 

judgment  docketed  against  real  property  no  execution 860 

CROPS.: 

rights  of  purchaser  on  foreclosure 454 

of  devisee  to 454 

CROSS-BILL: 

when  interposed,  how  considered  and  how  actions  tried 634 

when  necessary 634 

could  not  introduce  new  and  distinct  matters 634 

was  founded  on  matters  alleged  in  original  bill 634 

necessary  where  defendant  entitled  to  relief  beyond  scope  of  original 

suit 634 

in  claim  of  lien  for  purchase-money  defendant  might  ask  rescission 634 

so  for  specific  performance  to  have  agreement  delivered  up 634 

when  proper  to  adjust  equities  between  defendants  and  practice 635 

when  matter  arose  after  suit : 635,  653,  656-659 

CULVERTS : 

liability  of  railway  for  not  providing  proper 387 

so  for  not  properly  fencing 882 

CUSTOM  OR  USAGE: 

if  not  general  should  be  pleaded i 318,  319 

BO  facts,  which  bring  within 318 

otherwise  if  general 318 

not,  however,  necessary  to  allege  party  knew  of 319,  860,  861 

cannot  be  pleaded  to  vary  written  contract 319 

how  facts  to  be  pleaded 563 

carrier  bound  to  land  goods,  notify  owner  and  store  according  to 667 

among  brokers,  to  sell  without  notice  not  binding 685 

party  inesumed  to  contract  with  reference  to  well  known 800 

but  presumption  may  be  rebutted 860 

must  be  reasonable,  and  when  is 861 

requisites  of  pleading 861 

goods  usually  mixed  seUer  may  mix  according  to  custom 891 

DAM.    See  Contribution,  Water  and  Water-course. 

DAMAGES: 

how  alleged 223 

when  special  must  be  alleged 222,  223 

in  action  for  enticing  away  servant 222,  223 

for  breach  before  term  expires ^23 

special  damages  in  libel  and  slander 223 


INDEX.  ^^^ 

,  PAGE. 

DAMAGES— ConhJiuecl: 

what  is  sufficient  allegations  of  facts  showmg "'.'.'.'.'...'.'.'. '. '. '. '. '. '.  ^h 

to  accrue ,• •  •  •  • !!!!!!!!!!!..  301 

in  actions  by  bailor  or  bailee o^^ 

in  action  by  pledgee r^> 

in  action  by  pawnor. 303 

upon  bond  to  indemnify  or  pay. .....  •  •  •  •  • 303 

when  costs  may  be  recovered  m  such  case ^^ 

when  may  be  recovered  by  surety g^g 

for  not  t/ansporting  goods  by  ship  agreed  to '. ! ! . .  316 

on  covenant  to  pay  taxes. 31(j 

price  and  actual  value  only  sought '. .  320 

prospective,  must  be  averred. _  ^.^q 

but  if  averred  may  be  recovered 3._,q 

though  paid  by  another '".".".'.'.'.'."......."...'.'.•'•'••  ^~'J. 

ini^i^noiaci\^n^ep^rse\i^s{he'^^re^  ■■■■■■•^ 

loss  of  trade  in  slander _   _  ^'>0 

failure  of  landlord  to  repair 3^0 

ZlZ  StSKuVof p^Sorni;  -aud  reiurus  mouV.  p^id; ::  J :  ;.■■::  |J 

obstruction  of  way . .  .........,.•• •  • ■,]Sd 

county  clerk  did  not  docket  judgment ....  389 

failing  to  protest  draft  or  note. •  • 3^9 

when  party  negligent  not  liable  for  co^t=^  •  •  •  •  • ; ;,93 

money  burned  through  negligence  of  another ^^ 

coal  mined  by  mistake. •  •  •  • 4(jO 

:£SKrnTa£?IpecfS--;fJ^i-"-Brtst;.Vcaii,age"-.eed  ...  «0.  »..l 

fnr  f.uttiiifir  of  trees  by  tenant .•••.*■;■■  'V 4K,S 

rule  o"  where  party  works,  and  to  be  paid  ma  d^--  ■■- " " ' ; ; ; ; ; ; ; ; ; ; ;  toS 
in  case's  of  sicknesa  or  inability  according  to  c     tract  rate^.^  _    .^^ 

when  may  be  apportioned  on  account  of  nm-qmaLr  oi  oo       ^^ 

where  accrues  after  settlement  or  are  ^^l  "Sects' to  "repair  C'Ji 

what  rule  of  and  how  shown  where  .if  "^1"^'!  "ff  ^°''  ^"^  ''^^^     798 

Tuegations  as  to  act  adniitted  by  failure  to  deny         ...... .  ■  •  • ^^., 

against  carrier  for  not  delivering  at  paiticular  time 

See  Relief;  Special  Damages. 

DEBTOR  AND  CREDITOR:  .„ 

•"    business  for  his  benefitin  name  of  another;  such  person  has  t'tle-  .^...-^^SJ 
See  EXEMPT  Pkopebty  :  Extension  of  Time  ;  Pkomise  ;  Receive«  :  Tendeu. 

DEED:  .  408 

X^tf^^dS:^^-Smcat;-oroouniy  '03 

See  Condition;  Construction  of  Deeds. 

DEED  POLL:  317 

one  who  accepts  bound  by  covenants  in 

DEFAULT:  7.^3 

onlv  admits  facts  well  pleaded ••••••• rai 

where  judgment  applied  for  on 8!8 

nniMtendment  or  presumption  on..... •••• 848 

plaintiff  can  only  have  relief  a^ked  f oi ^48 


when  party  iu,  cannot  recover  


irni ^^ 

885 


932  lis^DEX. 

DEFECTS :  paqb. 

if  not  substantial  to  be  disregarded 589,  849 

when  aided  by  pleading  over 847 

but  not  a  defect  in  substance 847 

bj  presumption  or  intendment  after  verdict 848 

but  not  of  material  facts  not  alleged ' 848 

may  cure  a  defective  statement,  but  not  defective  title  or  cause  of  action,  848 

no  intendment  on  default 848 

such  judgment  only  admits  facts  alleged 848 

and  plaintiff  can  only  have  relief  asked  for 848 

facts  must  show  him  entitled  to  the  relief 848 

but  rule  only  extends  to  matters  of  substance  and  not  of  form 848 

which  do  not  affect  substantial  rights  of  party 849 

DEFENSE : 

arising  after  suit 254 

new  matter  constituting,  must  be  pleaded 547-549,  554-581,  oii'Z 

and  party  cannot  avail  himself  of,  if  not  pleaded 5G1,  8G1 

under  denial  can  only  rebut  what  plaintiff  obliged  to  prove 58:i,  882 

payment  must  be  pleaded 549,  550,  564 

partial  failure  of  consideration 550,  563,  609 

so  total  failure  of 68" 

and  must  show  whether  partial  or  total GG9 

mitigating  circumstances 550,  566,  684 

partial  defense  may  be  pleaded 551,  bQ'i,  G84 

usury  must  be  pleaded 558 

so  appointment  of  receiver,  so  plaintiff  has  no  title 861 

settlement  and  satisfaction  after  suit 5G0 

but  judgment  for  part  and  payment  no  defense,  if  agreed  to  pay  balance,  560 

fraud  must  be  alleged  as  a  defense 561,  674 

may  show  property  worthless,  on  question  of  damages 561 

should  not  plead  evidence 562 

how  plaintiff's  want  of  title  to  be  set  up 562,  569 

if  assignee  of  lease  desire  to  show  he  has  assigned,  must  plead ; .  562 

What  must  be  Pleaded  : 

against  sheriff  for  escape,  that  debtor  returned  before  suit 503 

or  would  have  returned  but  for  plaintiff's  fraud 563 

or  that  debtor  was  recaptured 563 

discharge  in  bankruptcy 563 

infancy " 5G3 

nul  tiel  corporation 563 

that  a  statute  was  not  constitutionally  passed 533 

license 563,  679 

justification  by  an  officer  under  process 563,  671 

if  has  two  processes  nmst  i)lead  both 678 

when  must  plead  judgment 563,  671 

defect  of  parties  which  does  not  appear  on  face  of  complaint 563 

facts  which  render  award  invalid 563 

existence  of  custom  and  facts  bringing  within 563 

partial  failure  of  consideration  on  account  of  quality  of  goods 563 

that  defendant  of  imbecile  mind 563 

or  intoxicated 563 

act  of  God.  as  a  freshet 563 

that  contract  was  illegal 563 

unless  appears  on  complaint  when  might  demur 563 

misnomer 5G3 

that  party  agreeing  to  lease  cannot  give  good  title 5G3 

extension  of  time  to  perff)rm  contract 563 

when  reasonable  time  is  implied. . . ., 563 

and  must  plead  tender 563 

laches  in  demanding  execution  of  trust 563 

that  patent  invalid 563 

fraud  in  inducing  party  to  enter  into  contract 564 

that  property  illegally  levied  on  was  legally  levied  by  another 564 

that  party  is  a  bona  Jide  purchaser 564 

and  must  allege  want  of  notice  at  payment ,564 

even  securing  money  insufficient 564 

adverse  enjoyment 5C4 

payment .564 

uidess  plaintiff  allege 564 

a  counter-claim .504 

that  plaintitT  knew  of  and  connived  at  daughter's  seduction 564 

<"->  for  sed'^'*ing  wife 564 


INDEX.  933 

DEFENSE  —  Continup.d :  page 

that  contract  resciuded  for  fraud 5(^ 

disatfirmaiice  ou  ground  of  infancy 5(H 

that  an  award  has  been  made 5<J4 

a  former  suit 564 

though  if  proved  without  objection  a  defense 5(>4 

judgment  after  issue  joined 504 

though  record  just  made  up fiW 

under  denial,  \<^hether  may  show  afterward  vacated 5Go 

but  should  be  aet  up  in  supplemental  answer Uv> 

or  by  answer,  if  before  plea 565 

setting  up  purchase  of  chattel  mortgage,  or  judgment  and  levy  after 

conversion 56,5 

sheriff,  in  escape,  pleading  debtor,  worthless ,565 

that  sold  as  manvifacturers,"  not  they  were  in  fact 565 

if  third  person  claim  under  tenant  in  common,  must  plead  fact  if  admits 

ownership  in  plaintiff S&j 

under  iio?i-esi/ocfum,  cannot  show  abandonment  or  uon-perfonnance,  5G6 
where  defendant  cannot  perform,  plaintiff  must  plead  facts 56(5 

and  must  show  why  does  not  offer  to  perform 5G»J 

in  divorce,  condonation  must  be  pleaded 6G9 

so  estoppel 670 

that  sale  to  plaintiff  was  fraudulent 074 

What  need  not  be  pleaded 599-601 

if  conversion  denied  that  defendant  tenaut  in  common 5(>5 

that  defendant  in  actual  possession  of  laud  trespassed  on rj(i5 

quantity  of  grass  cut  before  statute  of  frauds  insisted  ou .%') 

alteration  need  not  be  pleaded,  if  execution  denied 5(55 

under  denial  of  ownership,  may  show  gift  by  plaintiff's  intestate 566 

under  allegation  of  wrongful  act,  may  show  negligeut .566 

of  tender  may  show  waiver 506 

but  otherwise,  of  protest 566 

except  where  allege  duly  presented 506 

under  allegation  of  due  authority,  sustained  by  ratification 5G6 

amendment  in  such  case 566 

matter  in  mitigation,  except  libel  or  slander 5W3 

in  breach  of  promise,  that  plaintiff  in  habit  of  becoming  intoxicated 567 

or  guilty  of  improper  conduct 567 

or  in  seduction  not  amounting  to  consent 567 

but  must  be  offered  specially  in  mitigation 567 

that  plaintifTs  negligence  contributed 567 

uor  in  seduction  that  plaintiff  and  wife  alienated 567 

converse  of  proposition,  plaintiff'  must  establish 599 

nor  reuHon  why  plaintiff"  ought  not  to  recover  if  states  facts 59i» 

what  court  notices  ju<licially 599 

not  bound  to  answer  matter  stated  by  way  of  recital 599 

or  arithmetical  proposition 599 

immaterial  alleviations 599 

nor  prayerfor  relief -i^ 

nor  if  subject  to  penalty  or  forfeiture _•  ■  •  COO 

how  denial  to  be  framed  in  such  case ._ KOO,  601 

need  not  allege  want  of  stamp,  if  denies  execution •  •  •  fi97 

form  and  substance  of 001.  60ji 

hypothetical  form  of  defense,  how  far  allowable 60:i-(>05 

not  to  be  ai-gumeutative ^■^^ 

intent  of  plaintiff  need  not  be  answered 'j05 

to  part  of  cause  of  act  ion ■  • ; •  C'_^'';  ',"00 

arising  after  suit,  but  before  answer 635,  653,  056-|jo'J 

under  denial  of  plaintiff's  title,  may  prove  defendant's  title iJa 

need  not  plead  revocation  of  agent's  authority ••^  567 

facta  must  be  pleaded "v^.i 

conclusions  of  law  not  be  pleaded 5^' 

to  bo  set  out  same  as  a  cause  of  action • 571 

a  defense  should  not  be  pleaded  if  can  be  proved  under  denial -W 

allegations  on  subj(>ct  of  costs  proper ^* 

looking  to  affirmative  relief ?°^ 

formerly  could  onlv  interpose  one  plea •^' ? 

under  Code  may  plead  as  many  as  has,  if  not  inconsistent y-  i^y 

what  are  inconsistent ^  ^^OA 

remedy,  if  iiiierposed '^'^ 

See  An-swer;  Denial;    Pountkr-claim;  Joint  ok  Separate  Answers; 

Separate  Defen"^ 


034  I]^DHX. 

DEFENDANTS :  page. 

when  plaintiff  may  declare  against  one  of  several 63 

proceedings  for  leave  to  proceed  against  one  of  several 64 

how  far  equities  between,  may  be  set  up 237 

plaintiff  not  obliged  to  serve  answers  of,  in  interpleader 357 

rights  of,  as  between  themselves  in  interpleader 357 

one  of  several,  purchasing  action  against  all 404 

one  cannot  embarrass  plaintiff  by  setting  up  rights  against  another,  591,  610 

when  may  interpose  equities  between,  and  how 635 

■when  all  to  verify  answer 644 

not  affected  by  acts  of  co-defendant,  in  which  does  not  join 799 

one  cannot  delay  plaintiff  by  equities  as  to  co-defendant 802 

but  defense  which  affects  plaintiff  proper 802 

See  Joint  Debtors  ;  Joint  and  Several  Answers  ;  Parties. 

DEFINITE  AND  CERTAIN: 

indefiniteness  in  jlllen  v.  Patterson  not  allowed,  on  motion 171,  199 

allegation  that  sold  "  as  manufacturers  "  not  sufficient  to  show  were,  172,  565 

degree  of  definiteness  required - 228,  259-264 

if  denials  evasive,  remedy  by  motion 512 

instances  of  what  are 512-515 

motion  to  make  counter-claim  so 653 

court  will  order  allegation  of  truth  to  be  by  setting  out  the  facts 678 

where  time  or  place  not  definite,  remedy  by  motion 739 

cannot  demur  for  uncertainty 754,  771 

if  substance  good,  remedy  by  motion 756 

motion  not  proper  as  to  demurrer 768 

when  remedy  by  motion 771-773 

answer  that  plaintiff  indebted  in  certain  sum,  as  .per  bill  of  particulars, 
indefinite 810 

DEFINITENESS: 

degree  of,  required  in  pleading 228,  257,  259,  264,  268 

remedy  for  indefiniteness 268 

DELIVERY : 

paying  earnest  and  furnishing  cloths  for  packing,  not 341 

SeeBALLMENT;  Carrier;  Express  Company: 

DEMAND : 

when  must  be  alleged  and  when  necessary 214 

when  unnecessary  in  ejectment 230 

not  necessary  against  fraudulent  purchaser 309,  861 

but  is  against  assignee  or  purchaser  in  good  faith 309,  861 

and  if  several  assignees  must  be  demand  on  each 309 

after  suit,  evidence  of  conversion  before 309 

none  necessary  in  ejectment  against  pui'chaser  in  default 321 

nor  against  one  receiving  money  for  another 321 

nor  in  cases  of  note  payable  at  particular  place 321 

though  maker  may  plead  readiness  there 321 

effect  of  and  practice  in  such  cases 321 

necessary  if  payable  on  demand  at  sight 321 

none  necessary  against  one  obtaining  goods  by  mistake 321 

necessary,  time  of  performance  not  fixed 321,  861 

allegations  when  tender  or  performance  waived 322 

one  rightfully  in  possession  not  liable  until 322 

but  must  show  came  into  possession  bona  fide 322,  861 

averment  of  wrongful  detention  includes 322 

receiver  of  rents  must  demand 322 

so  a  grantee 322 

necessaiy  when  surety  agrees  debtor  will  pay  on 322 

none  necessary  where  duty  to  remit S^12 

as  against  sheriff  for  moneys  collected 322 

but  is  against  attorney  unless  waives 322 

but  not  for  legacy  he  has  received 3.'2 

is  in  action  against  foreign  factor 322 

against  sheriff  for  property  properly  levied  on 322 

if  may  deliver  either  of  two  things  must  demand  both 322 

creditor  to  select  articles  in  payment 322 


INDEX.  -^^ 

^       ,.  J  PAGE. 

DEMAND  —  Continued.  .^.^^^ 

so  of  option  to  re  -purchase  bonds '..r£ 

must  be  made  at  proper  time  and  place. ^ 

refusal  to  deliver  at  any  except  proper  place ^ 

servant  refusing  to  deliver  without  master's  orders ^ 

when  master  liable  for  refusal  by  servant ,.,^ 

purchaser  ou  condition  title  not  to  pass  till  payment • -^»^ 

servant  may  demand • 323 

how  far  one  may  ratify  a  demand. ... . . . .  • • 3^3    ^^jj^ 

must  be  made  so  to  enable  to  comply  with '  3.,^ 

when  demand  of  one  of  several  good _  322 

one  of  two  lessors  may  demand  rent ;  •     _  gg^ 

of  one  of  several  joint  tenants  .• 3^3 

necessary  by  depositor 323 

unless  right  denied. _ 323 

so  of  individual  depositary _  303 

of  wife  not  good  against  husband .  ••.••••• '  > ■.■.'■.■.■.■.*. 323 

must  object  to  authority  to  make  at  time  ot _  3^3 

of  dower,  when  husband  has  alienated •  •  •  •  • g^g 

allegation  in  cases  of .•••;•• :  •/  "V  "  *  A" ' " ,'  '^iio 379 

necessary,  if  money  received  by  mistake  6o»m>de •  3„g 

otherwise,  if  received  mala  fide  ••••;••••;;••/,••  V.  ^  • ' ..'.'.'...  410,  «61 

act  to  be  done  on  demand  party  has  reasonable  time .  ^^^ 

so  where  "  immediately  ou  demand    •  •   _  _  ^-^q 

or  "  at  once  and  without  delay    -^gg  •^gg'  ^59^  4^9 

when  necessary  in  trover V"  'Wn '  ■^i-nnVi-tv 461 

only  evidence  of  conversion  where  party  has  Pi  opf  ty  ; ^gg 

under  agreement  to  do  certain  work  or  pay  certain  sum *-» 

See  Conveksion;  Notice. 

DPMUR:                                                                                                                      .,75 
cannot,  because  relief  asked  too  broad 

DEMURRAGE:  32^^  ggg 

wheu  recoverable 

DEMURRER:  gO 

for  defect  of  parties  plaintiff '.'.'.'..'........    80 

for  misjoinder  of • •  •  •  •  •:•;•"•  V  * *".*.'. ". 113,  114 

objection  not  proper,  party  must  ^^  taken  Dy.... .  v^y  •' •^;^.i     ^.^^^  cle- 
oue  defendant  cannot  demur  on  ground  anotuei  i™^™^^^-^ II4 

fendaut .••.■•*■, 12ti 

where  maker  and  guarantor  joinea 120 

^l^^^-l^^^iSlparat^iy-n^^ 

if  complaint  shows  certain  parties  necessaiy  may  demui ....  563 

es',  wLre  Ulegality  appears  on  * ^ce  of  comp  aint  ^^^ ; ; ! ! ! ! ! ! !    " ! .  577 
that  facts  in  mitigation,  in  l^^el  or  sWe^,  not  so  pte                malicious 
not  proper  in  slander  where  claims  priviiegea  i"J|   -^^ 580 

wi^ruot  lil'to'immateriaV  matter  mixed  with  other •  •  •  ^^^ 

otherwise,  if  whole  defense  bad  ... .  ••••••••:•  :•  • " " '  itin;-'  ■■".'.'. 674 

presumption  that  agreement  re*iuired  to  be  is  in  writin ^,^^   ^^ 

remedy;  if  served  to  same  matter  as  answer  or  repiy ^^-j 

definition  of 7o0-73r> 

nature  and  use  of 730 

must  admit  the  facts •  •  •  v ;  • ; • '^  'wplVnieaded! 505,  515.  78i{ 

but  only  admits  such  as  are  material  and  well  Pjeadea. .   .  •  •            .    .3^    73c, 
when  courts  of  this  State  ^^ve  lurisdicton  of  ny  ui  les  11 ^.^^^ 

except  for  trespasses  on  real  estate  m  '^"o'^^f^^.^?^!^-  oq     7!^ 

how  question  of  jurisdiction  in  such  case  deteimmed,  on ^,^ 

how  wantof,  determined  on  motion 73O 

what  questions  formerly  raised  by . . ...  •  •  • -Tll-^^fli'iVe.'  ■.■.■.".'. 730,  771 

many  inch  questions  now  by  motion  to  make  aeniiite.  ^.^^ 

difference  between  general  and  special _   _ -;;jL 

may  demur  for  any  number  of  causes r^-^^^  .j--! 

not  to  part  of  a  pleading  or  count 73^ 

to  one  of  several  counts., V'W'h 73;i,  70^,  863 

must  not  be  too  broad  or  cover  too  much 


936  INDEX. 

DEMURRER—  Continued.  ?i>:.a, 

if  states  demurs  to  answer,  but  subsequently  states  what  part  applies 

only  to  that V63 

overruled,  if  to  entire  pleading  part  good 732-735,  755,  862 

j udgment  to  be  for  party  committing  first  fault 733-735 

if  to  answer  defendant  may  attack  complaint 733-735 

if  to  reply  plaintiff  may  attack  answer  unless  complaint  bad 733-735 

though  a  good  count  may  sustain  the  defective  pleading 732-735 

but  in  looking  back  court  will  not  regard  matters  of  form 732-735 

and  will  not  attack  if  only  cause  for  special  demurrer 732-735 

one  defendant  may  demur  and  another  answer 734 

but  cannot  demur  and  answer  to  same  defense ;  remedy  if  does 777,  781 

cannot  be  used  to  strike  out  irrelevant  matter 735,  761 

for  what  causes  defendant  may  demur  to  complaint 735 

defect  must  appear  on  "  face  of  complaint " 736,  766 

but  if  does,  should  take  objection  by  demurrer  and  not  by  answer 770 

if  does,  can  only  be  taken  by  answer 770 

for  want  of  j  urisdictiou 736,  742 

when  remedy  for  lack  of  by  demurrer,  and  when  by  ausAver 736 

as  to  amount  claimed 737 

did  not  show  cause  of  action 737 

want  of  jurisdiction  of  subject-matter 737 

as  matter  of  political  and  not  legal  nature 737 

matters  only  enforced  by  treaty 738 

State  courts  nojie  over  federal  courts 738 

none  over  officer  of  United  States  for  official  act 738 

except  for  wrongs 739 

nor  of  suit  to  restrain  infringement  of  patent 738 

but  how  far  fraud  as  to  sale  though  defendant  claims  patent 738 

not  necessary  property  should  be  within  jurisdiction 738 

but  court  may  decline  to  act  in  such  cases 738 

courts  of  one  State  have  of  specific  perfoi'mance,  land  in  another 738 

though  is  matter  of  discretion 738 

supreme  court  is  one  of  original  jurisdiction  of  all  actions 739 

wrongs  by  officers  at  sea 739 

in  cases  of  salvage 739 

actions  between  another  State  and  citizens  of  another 739 

what  are  courts  of  limited  jurisdiction 739 

proceedings  of  such  courts  should  show  jurisdiction  affirmatively 739 

of  such  courts  not  presumed 739 

if  not  shown,  ground  of  demurrer 739 

judgment  of  such  courts  void,  though  objection  not  taken 739 

of  superior  courts  presumed 740 

if  want  of  in  such  courts  does  not  appear,  remedy  by  answer 740 

when  proceedings  set  aside  by  motion 740 

when  and  how  far  over  non-resident  defendants 740-742 

service  out  of  State  does  not  confer 741 

service  here  on  president  of  non-resident  corporation 741 

only  remedy  service  by  publication 741 

in  cases  of  divorce  defendant  a  non-resident 742 

when  facts  showing  jurisdiction  in  such  cases  to  be  pleaded 743 

on  ground  plaintiff  has  not  legal  capacit}"^  to  sue 743 

as  infant,  idiot,  lunatic,  etc.,  and  no  next  friend 743 

if  appears  on  face  of  complaint  may  demur 743 

if  not  to  be  taken  by  answer 743 

if  not  waived 743 

so  if  appears  demand  assigned  to  another 743 

if  appears  plaintiff's  letters  of  administration  void 743 

as  in  letters  issued  in  a  foreign  country 743 

but  need  not  allege  incorporation 743 

another  action  pending  for  same  matter 743,  744 

if  appears  from  face  of  complaint  may  demur 744 

if  not  by  answer 744 

if  not  defense  waived I'A 

such  defense  cannot  be  taken  advantage  of  by  motion 744 

case  where  separate  actions  against  different  wrong-doers V  ■,4 

former  suit  in  another  State  or  fedei'al  courts  no  defense 7*4 

for  dc^fect  of  parties 744-.  i'.) 

must  be  taken  by  demurrer  if  appears  by  complaint . .     44 

otherwise  by  answer :  4i 


INDEX.  937 

DEMURRER  —  Contiyiued :  page. 

if  ill  neither  way,  is  waived 744 

tliis  applies  only  to  formal  parties 74G 

but  still  court  must  order  necessary  parties  to  be  brought  in 746 

such  defect  is  deficiency  of  and  not  too  many  defendants 745 

who  may  demur  on  account  of  too  many 745 

cause  of  action  not  in  favor  of  all  the  plaintiffs 745 

must  specify  plaintiff  to  which  objects 745 

if  for  want  of  necessary  parties  must  point  out  who  they  are 745 

except  where  shows  other  necessary  parties  without  naming  them 746 

where  parties  have  common  or  general  interest 747,  748 

where  non-residents  nee  1  not  be  made  parties 748 

but  the  fact  that  is  and  has  no  property  in  State  to  be  pleaded 748,  749 

that  several  causes  of  action  improperly  joined 749 

objection  must  be  taken  by  demurrer 749 

and  cannot  evefi  compel  to  elect 749 

so  if  count  for  f rauil  and  one  in  warranty 749 

may  join  trespass  on  lands  and  to  real  property , 749 

complaint  on  award  states  but  one,  though  states  facts  fully 749 

formerly  culled  multifariousness 749 

is  of  causes  of  suit  and  when  lies 750 

and  so  where  party  only  interest  in  part 750 

demurrer  not  created  by,  but  only  delined  by  Code 750 

multifariousness  covers  more  than  misjoinder  of  causes 750,751,  752 

in  causes  othor  than  provided  for  by  Code,  former  equity  rule  as  to 

joinder  applies 750 

what  are  dissimilar  and  incompatible  causes 751. 

when  may  maintain  as  toditrercnt  trust  or  different  d  mors 751 

one  good  ground  and  another  uiit^Miaide  not  multifirious 751 

bill  against  executor  for  le  ;,aoy  and  personal  debt  multifarious 751 

by  creditor  for  account  against  executor  and  to  reach  lauds  in  hands  of 

third  person 751 

interest  of  plaintiffs  same  defendants  under  same  general  scheme 751 

not  pfot)er  to  joinder  one  who  erects  nuisance  and  grantee 753 

remedy  for  multifarit)usness  by  demurrer 753 

and  when  to  be  joint 753 

claim  must  affect  all  the  parties 753 

joint  claim  against  two  and  separate  against  one  .....    753 

distinct  and  separate  claims  against  two 753 

but  are  exceptions  to  rule 753 

what  is,  is  much  a  matter  of  discretion  for  court 753 

in  cases  created  by  Code  that  is  inflexible 753,  753 

must  not  require  different  places  of  trial 753 

but  no  objisctiou  that  requires  different  modes  of  trial 753 

must  be  separately  stated,  but  this  not  cause  of  demurrer 753 

that  complaint  does  not  state  cause  of  action 753-758 

this  does  not  apply  to  capacity  of  plaintiff  to  sue,  but  that/acis  show  no 

cause 753 

failure  to  demur  does  not  waive  this  objection 753 

may  reverse  judgment  on  appeal 753 

on  default,  only  admits  facts  well  pleaded 753 

restrictions  as  to  last  two  rules 754 

rules  for  determining  whether  complaint  states  cause  of  action 754 

statute  of  limitations  must  be  pleaded,  and  not  objected  to  by  demurrer,  754 

if  good  cause  of  action,  surplusage  cannot  demur :••;„••"  ^^ 

must  be  to  enter  cause  of  action 754,  755,  771 

will  not  lie  for  irrelevancy,  uncertainty  or  surplusage 754,  771 

but  this  does  not  extend  to  improper  joinder 755 

nor  if  entire  pleading  irrelevant 771-773 

if  several  counts,  separate  demurrers  proper 755 

when  complaint  held  to  contain  several,  though  not  separately  stated..  755 

for  not  expressly  averring  debt  due 7t55 

if  complaint  shows  debt  not  due,  demuixer  lies 755 

prayer  for  relief  not  stricken  out  nor  demurrable 755 

if  in  substance  sufficient,  not  demurrable  for  want  of  form 756 

remedy  by  motion  to  make  definite  and  certain. .  756 

so  must  defects  which  formerly  suljjeots  of  special  demurrer 756 

agreement  set  out  by  implicai ion  sufficient 756 

demurrer  only  goes  to  the  ^^ubsUince  of  complaint 756,  757 

as  when  shows  plaintiff  no  right  to  institute  suit 757 

lib 


938  INDEX. 

DEM  LIRRER  —  Continued :  •page. 

or  when  does  not  make  out  a  casein  plaintiff's  favor 757 

or  illegal  or  against  public  policy 757 

want  of  interest  by  plaintiff  in  subject-matter. 757 

if  joint  suit,  want  of  interest  in  one  of  plaintiffs 757 

as  if  one  be  a  mere  agent 757 

so  if  two  sue,  and  title  alleged  in  one  or  the  other 757 

so  that  defendant  not  party  in  interest  or  liable 75S 

as  married  woman  on  debt  of  husband 758 

f  complaint  shows  plaintiff  not  entitled  to  relief,  shoiild  demur  and  not 

answer 758 

formerly,  demuj-rer  only  lay  to  complaint 758 

when  may  be  interposed  to  answer  under  Code 759 

when  to  reply 759 

demurrer  lies  to  any  defect  in  answer  which  would  render  complaint 

thereon  invalid 759 

as  another  action  pending 759 

causes  improperly  united 759 

or  material  allegations  omitted 759 

if  defense  does  not  refer  to  cause  of  action  intended  to  answer 760 

if  to  entire  answer  overruled,  if  one  good  count 760 

cannot  demur  to  part  of  a  single  defense  760 

remedy  against  such  a  demurrer 760 

does  not  lie  to  denial  merely ...  76i) 

if  sham  or  frivolous  remedy  by  motion 760 

lies  to  mere  matter  in  mitigation 761 

or  may  move  for  judgment 781 

partial  defense  by  way  of  counter-claim,  good 761 

so  where  partial  defense,  as  mitigation,  may  be  pleaded  with  other 
matter 761 

so  where  might  formerly  be  set  up  by  way  of  recoupment  by  notice,  764 
when  cannot  demur  to  one  defense,  if  denial  of  another  inconsistent 

with  admission 763 

test  as  to  sufficiency  of  defense  of  new  matter 762,  763 

demurrer  lies  to  new  matter  for  insufficiencj' 763 

may  reply  a  set-oif  to  a  set-off. 763 

whether  a  demurrer  lies  to  a  reply,  if  not  required 763 

to  counter-claim  between  parties  as  to,  where  several  judgment  proper,  763 
not  connected  with  subject  of  action 761 

or  does  not  arise  ouib  of  transaction  set  out  in  complaint 761 

set-off,  partial  or  total,  proper 761 

what  is  set-oif  extended  by  Code 764 

but,  if  attempted  to  action  for  wrong,  may  demur 764 

how  grounds  of  to  be  stated 765-768 

that  does  not  state  facts   sufficient  to  constitute  cause  of  action  or 

defense 765 

but  may  specify  reasons 767 

on  other  grounds,  must  specifically  point  out  grounds  of  objection 765 

cannot  be  sustained  on  grounds  not  stated 786 

how  objection  to  want  of  jurisdiction  to  be  stated 766 

to  defect  of  parties,  must  specify  who  should  be 766 

but  need  not  necessarihi  name  them 76C 

that  another  action  pending 767 

several  causes  of  action  improperly  united 767 

rules  as  to  demurrer  to  answer  or  reply 767 

if  answers  right  to  demur  waived 769 

though  may  be  allowed  to  withdraw  answer  and  demur 769 

when  allowed  to  answer  on  overruling .• 769 

when  action  allowed  to  be  divided 769 

allowed  to  answer,  if  demurrer  not  frivolous 769 

otherwise  if  frivolous,  though  affidavit  of  merits 7i)9 

or,  if  for  form  merely 770 

this  rule  did  not  apply  where  objection  could  be  raised  by  general 

demurrer 770 

under  Code,  not  allowed  to  answer,  unless  interposed  in  good  faith',  770,  776 

but  may,  in  some  cases,  be  allowed  to  answer  on  giving  security. . . .  770 

allowing  to  answer  is  matter  of  discretion 770,  776 

usual  to  allow 770 

unless  appears,  no  amendment  will  aid  party 770 

if  answer  not  allowed,  by  order,  may  be  obtained  by  motion 7(0 


liNDEX.  939 

DEWURKEtR  —  Continued :  .  page. 

if  desires  to  answer,  should  do  so  aud  not  appeal  from  judgment. . .....  770 

when  allowable  to  sham  pleading 772 

on  ground,    reply  not  consistent  with  complaint 77'.i 

when  party  waives  objection  by  not  demurring  or  answering 773-775 

allowance  of  amendment  on  sustaining  demurrer 775-778 

is  matter  of  discretion ...  77G 

not  allowed  unless  court  satisfied  pleading  interposed  in  good  faith. ...  77G 

nor  if  leave  to  amend  once  given 776 

nor  if  apparent  party  can  in  no  event  succeed 776 

what  may  be  interposed  on  leave  to  amend 776 

although  court  may  grant  leave,  cannot  compel  amend  uent 776 

importance  of  removal  of  demurrer  overruled  from  record 778 

if  remains,  admits  facts  in  pleading,  or  pai't  of  it  demurred  to 778 

whether  to  be  disposed  of  before  issues  of  fact. 788 

where  to  be  argued 794,  795 

DENIAL : 

of  matters  presumed  as  matter  of  law 253 

defendant  may  deny  generally  or  specifically 504 

if  not  denied,  is  admitted 505,  523 

defendant  cannot  controvert  on  trial  allegation  not  denied 505 

of  agreement  under  statute  of  frauds 505 

if  plaintiff  admit  payment,  cannot  deny  if 505 

and  admits  difference  between  demand  aud  amount  claimed 505 

need  not  deny  matters  not  well  pleaded 505,  515,  783 

or  inferences  of  law 505,  515,  523-525,  526-528 

what  is  a  denial  of  a  fact,  and  not  of  law  , 523,  528 

general  denial 510-520,  548 

what  defenses  available  under .506-509,  548 

any  fact  which  plaintiff  not  bound  to  establish  affirmatively  must  be 

pleaded 510,  511 

if  denies  generally,  cannot  specifically,  and  vice  versa 512 

denial  of  each  and  every  material  allegation,  evasive 513,  514 

remedy  by  motion  to  make  definite  and  certain 512 

80  of  every  allegation  not  '"  expressly  and  absolutely  admitted  " 512,  544 

every  allegation  "  inconsistent "  with  what  stated 514 

general  denial  puts  in  issue  every  allegation,  including  what  implied..  515 

528,  529 

trover  puts  in  issue  plaintiff's  title 515 

test  to  determine  whether  allegation  material 515 

denial  of  copartnership  modo  et  forma 515 

of  facts  showing  had  no  knowledge  515,  534,  545 

of  any  knowledge  or  information  sufficient  to  form  belief. .  .515,  534,  545,  863 
when  party  not  allowed  to  deny  knowledge  or  information 515,  517,  534 

545,  862 

remedy  if  does 517,  545 

*'  says  he  denies  "  whether  good  denial 516,  526,  862 

in  supplemental  answer  cannot  deny  fact  admitted  in  original. 516 

when  denial  does  not  put  partnership  in  issue 516 

when  does 570 

held  good  of  indebtedness  where  went  to  trial 516,  570 

that  sold  plaintiff 's  property,  or  received  any  thing  therefor 516 

under  denial  of  indorsement  may  show  no  delivery 516,  524,  525 

must  deny  both  knowledge  or  information  sufficient  to  form  a  belief. . .  516 

of  ownership  not  sufficient  unless  alleges  who  is 517-519,  525-528,  569 

what  is  good  denial  of  ownership 527,  570 

but  when  facts  showing  not  alleged  in  complaint  may 517 

denial  of  indebtedness  not  good  unless  denies  facts 518 

so  of  non-payment 518 

when  plaintiff  simply  alleges  has  title  to  lands 518,  524 

of  incorporation  not  sufficient  to  let  in  proof  is  not 519 

must  plead  nul  tiet  corporation  519 

of  protest  not  sufficient  to  compel  production  of  notary 519,  520 

form  of  affidavit  in  such  case  {note) 520 

setting  up  inconsistent  state  of  factsnot  a  denial 520,  5.'i3 

nor  is  mere  inferential  denial  good 520 

specific  denials 520,  529 

may  deny  what  necessarily  implied 521 

what  is  necessarily  so  implied 528,  539 


940  INDEX 

DENIAL  —  Continued.  pag  r 

but  not,  if  not  necessarily  implied 521 

nor  mere  matter  of  aggravation 521,  522 

nor  if  not  essential  to  case 521 

nor  immaterial  matter 521,  522 

if  specific  may  deny  any  number  of  the  allegations 521 

whether  denial  of  immaterial  matter  will  be  struck  out 522 

denial  that  taken  out  of  prison  by  habeas  corpus 523 

delivery,  negligence,  notice,  demand,  etc 521: 

that  plaintiffs  joint  owners 524,  570 

by  defendant  that  he  was  a  partner 524 

of  pi-esentment  and  non-payment 524 

of  indorsement  and  delivery 524 

that  made  note  is  of  delivery , 525 

that  plaintiff  bona  fide  holder  of  note 523 

of  indorsement 52G 

of  payment  when  alleged  in  complaint  (uofe) 529 

form  of  general  denial 530 

by  negative  pregTiant  defective 530-534 

when  issue  material  as  to  some  defendants,  denial  as  to  them  good 533 

if  denies  knowledge  or  information  sufficient  to  form  belief,  need  not 

deny  the  allegation  expressly 535 

remedy  for  defective  denial 545-547 

under  denial  can  only  give  evidence  rebutting  plaintiff's  case 582 

form  of,  when  excused  from  verifying 600 

of  one  material  fact  good 605 

must  deny  facts 087 

of  all  allegations  inconsistent  with  answer 087 

under  denial  of  execution  may  show  no  stamp 697 

demurrer  does  not  lie  to 760 

if  sham  or  frivolous  remedy  by  motion , 760 

allegation  assignor  had  continued  in  possession  denial  had  managed  and 

controlled,  not  good 798 

must  be  direct  and  positive 798 

that  is  owner  and  holde"  if  facts  showing  not  alleged 806 

to  be  liberally  construed  at  trial,  if  question  not  raised  till  then 807 

of  matter  not  alleged,  except  incidentally 812,  813 

when  negative  pregnant  not  good 813-815 

when  is  a  negative  pregnant 813-815 

See  Admissions  ;  Answer  ;  Replt. 

DEPARTURE: 

reply  must  be  consistent  with  complaint 719 

what  is  departure 719 

DEPUTY  SHERIFF: 

cannot  maintain  action  in  own  name 293 

DESTROYING  NOTE  OR  BILL : 

liability  for,  by  defacing 334 

DEVISEE : 

when  not  bound  to  pay  mortgage 373 

suit  by,  for  rent,  defense  devisor  not  seized  of  reversion 693 

DIRECTORS : 

statute  of  limitations  in  favor  of,  for  not  making  report 682 

though  liable  for  fraud,  as  to  stock,  company  not 894 

See  Oeficeks  of  Cobporations. 

DISAFFIRMANCE : 

on  ground  of  infancy  must  be  pleaded 564 

seller  may  disaffirm  "and  sue  purchaser  without  consideration  from  ven- 
dee or  with  notice 669 

without  offering  to  tender  back  to  such  purchaser 669 

if  sues  vendee  and  compromise,  may  still   disaffirm  as  to   purchaser  of 

remainder,  862,  reversing 669 


IIN-DEX.  941, 

[.>ISAFFIIIMANCE  —  Continued :  page. 

thouj^h  expressly  reserve  such  right G6!) 

ou  disaffirmi iig  for  fraud  must  do  so  promptly G(J9 

and  return  all  received GG9 

but  may  recover  damages  for  fraud  without  offering  to  rescind 060 

taking  any  benefit  with  knowledge  of  a  ratification C69 

or  changing  condition  of  the  property 669 

if  property  capable  of  serving  any  advantage   to  vendee  must  be  re- 
turned   ..:...... ......' 669 

notes  delivered  as  escrow :  purchaser  entered  and  vendor  afi&rmed  his 
act 863 

See  Fraud;  Rescission. 
DISCONTINUANCE : 

how  affected 497 

arbitration  operates  as 659 

when  reply  of,  good 7'^,  728 

against  infant  without  costs 825 

DISCOVERY : 

cannot  be  had  through  pleadings 30,    49 

DISCRETION.  See  Officer. 

DISTRAINT  FOR  DAMAGES: 

how  may  be  pleaded 583 

how  defendant  to  justify 582 

DIVORCE : 

absolute  and  limited  cannot  be  joined 142 

what  allegations  may  be  inserted 142 

what  revives  condonation 142 

on  gi'ound  former  divorce  f i-audulently  obtained 324 

husband  expelling  wife  on  suspicion  of  unfaithfulness 324 

allegations  in  action  for,  on  account  of  adultery 324,  325 

marriage  obtained  by  woman  falsely  representing  she  is  pregnant 325 

or  by  fraudulently  representing  had  never  been  mai'ried 325 

woman  fraudulently  representing  she  is  virtuous  when  pregnant 325 

false  statement  as  to  age 325 

woman  divorced  not  entitled  to  dower 326 

adultery  by  plaintiff  after  suit  to  be  set  up  by  supplemental  answer  ....  655 

though  husband  impotent,  marriage  good  until  set  aside 668 

condonation  must  be  pleaded,  and  is  a  defense 669 

jurisdiction  in  oases  of,  and  when  granted 742 

requisites  of  complaint  in  cases  of 742 

affidavit  required  in  cases  of 742 

See  Alimony. 
DOG: 

servant  or  child,  setting  ou  cattle 375 

See  Animals. 

DOWER: 

when  widow's  right  of,  may  be  assigned 67 

may  be  recovered,  and  rents  and  profits 140 

complaint  for 2')0,  232 

allegations  to  bar  in  foreclosure 234 

widow  not  barred  by  joining  husband  in  fraudulent  deed 325,  863 

equitable  suit  lies  for 326 

parties  in  such  cases 326 

how  computed  in  cases  of  alienation .326 

damages  for  detention  only  from  demand 326 

allegations  in  such  cases 326 

if  wife  divorced,  not  entitled  to 326 

husband  fraudulently  conveyed  just  prior  to  marriage  326 

lapse  of  time  with  knowledge  a  waiver ^3© 

See  Advancement  ;  Redemption  ;  Specitic  Performance. 
DRAIN:    See  Nbgliqenoe. 


942  INDEX. 

DRUGGIST:  PAaE. 

liable  to  husbaud  for  selling  wife  laudanuta 348 

negligently  selling  articles 390,  391,  851 

cause  of  action  against  for  causing  death  survives 851 

See  Abatement  and  Revivor. 

DRUNKARD : 

allegations  as  to  appointment  of  committee 226 

DRUNKENNESS : 

servant  discharged  for 493 

DUE: 

how  fact  that  debt  is  due  to  appear 171 

meaning  and  construction  of  impleading 199,  806 

what  presumptions  as  to  when  cause  of  action  due 255 

if  complaint  show  is  not,  demurrer  lies 256 

how  far  complaint  must  show  debt  due 755 

DULY: 

allegations  that  "  duly  "  performed 179-181,  209 

DUPLICITY: 

meaning  of  and  when  allowable 262-264 

DURESS : 

note  given  while  under  imprisonment  for  civil  damages  void  in  hands 

of  payee 670,  863 

so  one  with  notice  of  facts 670 

though  criminal  charge  not  compounded 670,  863 

and  though  full  amount  tbex'eof  be  due 670 

terrif.ving  woman  by  duress  of  husband 670 

whether  imprisonment  must  be  lawful 670 

exists  through  threats  made  several  days  before,  if  not  withdrawn 670 

employer  compelled  to  pay  through  conspiracy 670 

See  Voluntary  Payment. 
DUTY : 

not  enough  to  allege  was  defendant's  duty 218 


EASEMENT : 

to  fish  in  one  channel  does  not  exist  if  channel  changed 670 

one  purchasing  an  alley  does  not  lose  though  some  evidence  of  abandon- 
ment   863 

EJECTMENT : 

who  may  be  made  defendants  in 130 

what  may  be  joined  with 143 

complaint  in 230 

by  vendor  against  vendee 230,  231,  321,  465 

how  title  to  be  alleged 231 

recovery  of  rents  and  profits 231,  232 

requisites  of  complaint 326 

defendant  must  be  iu  active  or  constructive  possession 326 

complaint  must  allege  defendant  in  possession 326 

must  show  plaintiff's  estate  and  right  to  possession 326 

consti'uctive  possession  by  defendant  sufficient 326 

so  claim  of  title  if  unoccupied 326 

not  for  street  against  municipal  corporation 326 

otherwise  against  a  railroad 327,  409 

wife  not  to  be  joiiied  unless  has  legal  estate 327 

when  landlord  and  tenant  may  be  joined 327 

allegations  in  such  cases 327 

lies  for  narrow  strip 327 

but  sheriff  not  compelled  to  deliver  possession 3'iT 


ITTDEX.  943 

EJECTMEISTT  —  Continued :  paoe. 

mother  of  infant  cannot  serve  notice 8,')1 

docs  not  lie  by  purchaser  under  second  mortgage  agaiust  first  mortgagee,  413 

defendant  may  set  up  equitable  defense C;^0 

defeni>ant  may  set  up  equitable  title C3;> 

when  an  advancement  by  parent  good  defense '. .  (;64 

staying:  proceedings  on  payuicut  oi  rent    and  costs 702 

but  not  if  for  not  repairing  without  security 703 

nor  if  for  sub-letting  contrary  to  coveuaut 703 

by  wife  agaiust  husband Gl 

ELECTIOX: 

v/hen  defense  stated  in  different  ways  how  far  compelled  to 607 

motion  to  compel  party  to  elect  ou  causes  of  action 144,  863 

vv'hen  court  will  compel  and  when  not 150, 193,  222,  863 

allesations  when  may  elect  whole  sum  to  become  due  on  breach 304 

where  party  has  several  remedies  and  elects  one 485 

to  do  certain  work  or  pay  money 486 

if  has  suit  on  counter-claim  and  sets  up  as  defense  bound  to  elect 588 

when  workman  luay  elect  whether  will  uiake  three  or  four  models 691 

to  rescind  contract , 694 

when  not  compelled  on  trial  though  misjoinder 749,  863 

ENDORSER: 

of  non-nogotiable  bill  or  note 125 

action  by  payee  against  endorser  before  deliveiy 337 

allegations  in  such  case 327,  328 

proof  necessary 328 

of  non-negotiable  instrument 328 

allegations  in  such  case 328 

wiiether  may  recover  where  pays  note- without  protest 383 

paying  note  mistakenly,  supposing  was  protested .• 467 

maker  cannot  verify  answer  for 644 

in  suit  ou  agreement  to  endorse  must  allege  tender  of  note 701 

See  Denial;  Promissory  Noxks. 

EQUITABLE  DEFENSE: 

defendant  may  interpose 587-590 

how  to  be  pleaded 589 

defendant  may  intez'posc 630,  634 

EQUITY: 

if  acquires  jurisdiction  will  do  complete  justice, 476 

how  far  Code  has  abolished  distinction  between  law  and  equity,  20,  24,  32 

40-51,  135,  138,  140,  141,  227 

distinction  between  law  and  equity,  how  practically  applied 24 

legal  and  equitable  relief  may  be  granted 26,  31,  32,  135,  274 

but  must  not  be  inconsistent 31,  141 

how  legal  and  equitable  causes  tried  141,  274 

complaints  in 227-229 

See  Pleading. 

EQUITY  CASES : 

how  to  be  tried 789 

issues  settled  for  j  uiy 791 

KSCAPE : 

defense  for,  how  pleaded 563 

plea  by  sheriff  that  debtor  worthless 565 

ESTOPPEL : 

whjen  married  woman  estopped  by  representation .^.  •  ...■  372 

or  by  acts  of  husband ^71,  373,  876 

when  vendor  estopped  by  judgment  against  vendee 473 

bank  with  which  assignee  deposits  may  set  up  assignment  fraudulent ,,  632 

facts  which  create  must  be  pleaded ^'70 

though  if  proved  without  objection  good  defense 670 

merely  standing  by  without  renioustrance  does  not  create 070 

owner  signing  statement  as  to  value  of  property 670 

attorney  prosecuting  note  in  name  of  another  not 673 

one  erroneously  lixing  boundary  estopped  in  tresr>ass  until  revokes,  450,  704 
seller  Jiot  est')pped  from  showing  property  taken  fz-om  him   by  para- 
mount title 705 

by  parties  inserting  large  consideration  to  defraud  another 867 


944  INDEX. 

EVICTION:  PAGE. 

damages  for,  by  lease 317 

must  be  before  vendee  can  recover  of  vendor 473 

EVIDENCE : 

of  facts  not  to  be  pleaded 38,  39, 187,  216,  244,  249,  269,  590,  594 

of  what  property  sold  for  on  question  of  damages 472 

EXCEPTION: 

how  exception  to  promise  alleged 170 

difference  between  and  reservation 480 

EXECUTOR  AND  ADMINISTRATOR: 

when  proper  parties  and  when  heir 94 

when  creditor  may  sue  with  fraudulent  purchaser 127 

when  to  be  defendants  in  mortgage  foi'eclosure 132 

when  may  be  joined  with  survivor 110,  118,  119 

one  suing  another 112 

contract  by  testator  and  one  by  executor 142,  145 

action  for  conversion  between  death  of  decedent  and  appointment 213 

must  allege  appointment 226 

foreign  may  transfer  good  title 298 

liable  personally  to  attorney 300 

personally  liable  to  counsel 328,  665 

so  for'monument 328 

may  sue  in  own  right  for  money  deposited  as 328 

liable  personally  for  rent  if  he  occupies 329 

though  plaintiff  describe  himself  as,  may  recover  personally 329 

may  recover  as  such  if  carries  on  testator's  business 329 

if  carried  on  for  benefit  of  estate,  and  so  alleged 329 

may  recover  oti  covenant  not  to  cut  timber 329 

husband  died  without  taking  letters  on  wife's  estate 329 

husband  takes  as  such  and  not  as  administrator 329 

except  where  wife  leaves  descendant 330 

second  administrator  may  sue  representative  of  fii'st 330 

allegations  in  such  case 330 

may  set  aside  fraudulent  transfers 338 

bound  by  guaranty  "  until  notice  " 344 

agreement  that  surety  shall  control  funds 350 

liability  of  each  where  joint  bond  given 362,  872 

take  purchase-money  of  real  estate  and  necessary  parties 434 

widow  may  sue  any  one  but  representatives 454 

not  to  pay  interest  on  mortgage  on  lands  devised 467 

not  allowed  if  pays  invalid  claim 489 

when  suit  against  individually,  no  bar  to  one  against  as. 497 

plea  that,  had  fully  administered  before  notice  of  plaintiff's  claim 664 

may  compel  temporary  collector  to  account 667 

"  but  proceedings  before  surrogate  a  bar 607 

if  administrator  sell  after  notice  of,  will  be  liable  in  trover 671 

and  cannot  show  administration  of  assets 671 

when  existence  of  wiU  concealed  and  administration  revoked  on  dis- 
covery of 671 

if  acts  in  good  faith,  protected 671 

and  third  persons,  whether  administrator,  bona  fide  or  not (>71 

widow  acting  as  de  son  tort  cannot  give  title  to  property  of  husband 671 

when  short  statute  of  limitations  applies  in  favor  of 679,  680 

suit  for  debt  to  after  decease  of  intestate,  cannot  set  up  demand  against 

deceased  695 

sometimes  allowed  to  take  back  what  have  tendered 701 

whether  new  promise  to  a  departure 719 

bill  for  legacy  and  personal  debt  multifarious 751 

EXEMPT  PROPERTY: 

in  trover  for  need  not  allege  was 330 

articles  continue,  though  owner  on  way,  to  sell  or  exchange 330,  671 

creditor  cannot  reach  cause  of  action  or  judgment  for 330 

otherwise,  when  proceeds  invested  in  property  not  exempt 330 

otherwise,  if  property  not  exempt 671 


INDEX. 


945 


EXEMPT  PROFTS^RTY  —  Continued:  P-*^GE. 

if  officer  inteud  to  justify  selling,  must  plead /((dfifment 563,  671,  86J,  864 

what  raises  questiou  of  fact  for  jury oil 

EXEMPTION"  FROM  ARREST.    See  Arrest,  Exemption  from. 

EXPECTANCY : 

when  assignable ^^'    ^ 


EXPERT : 

agreement  to  pay  more  than  legal  fees 


350 
331 


EXPRESS  COMPANY : 

duty  as  to  delivery ;,•  •  •,• "  V J qqi 

stipulation  as  to  first  company  not  available  to  second mjl 

delivery  to  teller  of  bank ^| 

duty  of,  in  protesting  note *'•'■ 

See  Carrier. 

EXTENSION  OF  TIME : 

to  perform  must  be  pleaded •• ^ 

if  creditor  accepts  interest  in  advance,  operates  as . . o/^- 

promise  by  debtor  not  to  pay  till  certain  time,  no  consideration ba 

uor  is  payment  ol  part  of  amount  due • • ^iz 

when  action  does  not  lie  on  agreement  to  extend  time  of  payment 69^ 

may  be  found  from  circumstances,  as  paying  interest  in  advance ba» 


FACTOR: 

demand  necessary  against  foreign ^'^ 

See  Broker;  Commission  Merchant. 

FACTS  * 

and  not  conclusions  to  be  pleaded 36,  38,  39,  40-51, 184-196 

what  are  facts icj._iqft 

to  be  pleaded  according  to  legal  effect iia 

must  allege  facts  showing  duty ;j^° 

to  be  alleged  with  certainty • • 5^2 

showing  defendant  claims  interest  to  be  alleged •  •  •  •  ^' 

and  not  evidence '**^'  ^cq 

particularity  of  statement  required ^^ 

to  be  plainly  and  concisely  alleged ^^ 

without  repetition • • •  • ;^X'  qc,, 

if  pleaded,  not  necessary  to  allege  intends  to  rely  on  them '%r7  tit 

which  operate  as  a  defense  to  be  pleaded od/-od» 

See  Answer:  Complaint. 

FALSE: 

denials  not  stricken  out  as 

FALSE  IMPRISONMENT: 

may  not  be  joined  with  slander ^oq 

but  may  with  assault  and  battery j^g 

so  malicious  prosecution _. •; *„V,*  qfio 

when  complaint  for,  and  not  for  malicious  prosecution mT'  ^^2 

when  private  person  may  arrest  without  warrant 331-334 

when  officer  may •  •  • ^      oo-y 

lies  for  extorting  money,  though  process  valid 9-^* 

justice  cannot  commit  unless  brought  before  him ^^ 

liability  for  arresting  on  telegram ••••••••  V  •,:  Ti ^2 

party  pointing  out  offender  or  stating  facts  not  liable ^^ 

teacher  improperly  detaining  pupil  for  charges ^ 


does  not  lie  for  arrest  of  privileged  person 
intruder  refusing  to  leave  may  be  given  o'v 
•jfflcer  went  away  and  returned  with  assistance 

119 


intruder  refusing  to  leave  may  be  given  over  to  officer •  333 


946  IT^DEX. 

FALSE  IMPRISONMENT  —  Continued :  page. 

complainant  not  liable  though  justice  erroneously  held  probable  cause. .  864 

warrant  a  protectiou  though  very  general 864 

complainant  who  merely  delivers  wax-rant  not  liable 864 

otherwise  if  directs  airest  of  party 804 

FEDERA.L  COURTS: 

how  State  statutes  pleaded  in 436 

See  Demurree. 
FELON : 

effect  of  his  conviction , 99 

FENCE : 

right  to  enter  another's  land  to  repair 450 

FERRY-BOAT  : 

liability  for  horses  jumping  overboard 389 

FINDER: 

remedy  of  one  on  whose  land  logs  carried 491,  492 

remedy  of  one  finding  boat  adrift  and  preserving 864 

not  entitled  to  reward,  nor  can  he  use  property  found 889 

FIRE: 

when  master  not  liable  for,  negligently  kindled  by  servant 302 

railroad  company  ran  over  hose 384 

FIXTURE : 

bailee  making  of  personal  property 460 

FOLIOED: 

all  pleadings  over  two  folios  to  be  properly 808 

remedy  if  not 809 

party  objecting  must  be  technically  correct 809 

FOOD: 

warranty  on  sale  of  article  to  be  used  for 471 

FORBEARANCE.    See  Extension  of  Time. 

FORECLOSURE : 

defendant  may  have,  in  suit  to  restrain 631 

defendant  may  ask  to  have  mortgage  canceled 631 

See  Mortgage  Foreclosure. 

FOREIGN  JUDGMENTS.    See  Canadian  Judgjients. 

FORFEITURE : 

defendant  not  bound  to  answer  if  subj  ects  to 600 

FORGED  CHECK  OR  PAPER: 

liability  for  money  had  and  received  on 334 

so  in  trover 334 

drawee  bound  to  know  drawer's  handwriting 334 

so  as  to  amount 334 

clerk  abstracted  check  and  forged  indorsement 334 

negligence  in  leaving  blanks 334,  673,  864,  865 

paper  written  with  pencil 334,  672 

stock  transferred  on  forged  transfer 335 

payment  in  counterfeit  money  335 

delivery  compelled  of  bill  transfeiTed  on  forged  indorsement ...  335 

promise  to  pay  by  one  whose  name  forged  without  consideration 669 

if  taken  in  payment  does  not  extinguish  origi?ial  claim 690 

surety  signed  paper  to  which  name  had  been  forged .  008 

when  grantor  bound  by  deed  stolen  and  altered , .  865 

liabili ty  of  drawee  who  paj^s  a  forged  check 865 

when  may  recover  back  what  he  paid  on Wk/ 


INDEX.  947 

FOllGERY :  page. 

bauk  mistakenly  said  to  drawee  hold  bill  of  lading 379,  471 

is  uot  to  erase  indorsement  of  payment 876 

See  MoxEr  Had  and  Received. 

FORMER  SUIT: 

when  recovery  by  bailor  or  bailee  bars  suit  by  other 301,  853 

how  far  judgment  recovered  by  mistake  for  part  conclusive 378,  379 

how  far  by  general  owner  bars  bailee,  and  vice  versa .70,  853 

what  good  plea  of '^^'^^  363 

judgment  in  quaere  claaamn  no  bar  to  action  taking  personal  property,  44h 

when  vendor  bound  by,  against  vendee 473 

if  pleads  compromise  of,  should  plead  former  suit  pending 496 

mere  plea  of,  by  third  person,  invalid  unless  he  owned  cause  of  action,  497 

how  discontinuance  affected 497 

pendency  of  suit  against  one  individually,  when  no  defense  against  him 

as  executor 497 

pendency  of  suit  for  goods  sold  no  bar  to  one  for  conversion 49,1^ 

otherwis'e  if  proceeded  to  judgment 497 

suit  in  State  courts  when  bar  to  suit  in  federal 498  and  note  2,  86r) 

so  suit  in  another  State 498 

though  suit  in  another  State  sometimes  stayed 4Jb 

judgment  for  part  and  payment  no  defense  if  agreed  to  pay  balance 560 

must  be  pleaded ^G-i 

unless  proved  without  objection 5o4 

judgment  after  issue  joined 5o4 

though  record  just  made  up ■ 5»4 

under  denial  of  judgment,  may  show  subsequently  vacated 5bo 

defendant  not  hound  to  interpose  counter-claim CjoO 

judgment  not  impeachable  by  known  equitable  defense 0;i6 

wheii  counter-claim  barred  and  when  not  ...••• • ^3/ 

where  damages  subsequently  accrue  or  continuing _. 663 

though  executor  may  compel  collector  to  account  proceedings  m  sur- 

rogate's  court  a  defense o67 

dismissal  for  defect  of  parties  no  bar "i;^ 

or  before  verdict ^I'X 

so  verdict  on  ground  claim  not  due ^^ji 

otherwise  if  in  fart  due,  though  verdict  on  ground  not 6^|i 

dismissal  on  merits  a  bar 6^^ 

though  without  prejudice _• •  •  •  •  »''* 

how  far  judgment  against  one  of  several  wrong-aoers *iU-,  /^ 

would  be  on  payment  thereof 67U,  /44 

unless  in  its  nature  could  oulv  exist  against  defendant bti 

recovery  against  firm  for  goods  sold  no  bar  against  one  for  fraud. ......  6(d 

if  one  wrong-doer  pays  part  of  damages  may  be  deducted  in  suit  against 

another yj^ 

unless  received  in  full  satisfaction,  when  a  bar .•• ^'jj^ 

if  one  be  imprisoned  and  discharged  is  satisfaction  as  to  all oio 

in  recovery  for  property  and  payment  vests  title  in  defendant bid 

bv  relation  to  the  time  of  conversion \"'^:"'l<"'  ^~o 

if  one  partner  commence  suit  for  accounting,  suit  will  not  lie  by  otlier,  ht6 

though  asks  extended  relief ■ • •  •  •  •  ■ •  •  •  •  %% 

attorney  prosecuting  action  on  note  in  name  of  another  not  estopped  . .  o..i 
if  suit  on  warranty  defendant  not  compelled  to  discontinue  suit  for 

purchase-money  J^i.„ 

a  recovery  for  one  would  not  bar  other • . •  •  •  •  •  •  -^oq'  %% 

otherwise  if  for  same  cause  of  action O'^'  >  "<^°'  "^•''  ^Hf 

nor  will  judgment  against  one  for  continuance  when  has_  so  d b/.i 

how  far  surety  bound  by  suit  agaiust  or  in  favor  of  principal hi6,  »bO 

FORMS : 

of  action,  how  far  abolished  by  Code 33,  40,    51 

who  may  be   joined  in  actions  to  set  aside  different  fraudulent  trans- 

fj,rg    /_     .  _ 108,  140 

broker  aiid' purchaser 'for  fraudulently  selling  and  buying -  •  •  •  3;i3 

waiving  and  suing  for  goods  sold : ' ; ' '  'i  i  ai 

if  suiToiider  of  instraiuent  obtained  fniuduloiitl}'  not  extuiguisUeU. . . .   iJi 


948  INDEX. 

FRAUD  —  Continued.                                                                                          page. 
money  procured  by 192 

wheu  action  sounds  in,  and  when  in  warranty 192,  193,  877 

difference  between  and  warranty Zil,  877 

allegations  of,   when  material,  and  when  may  recover   notwithstand- 
ing  251,  877 

facts  showing  to  be  pleaded 27(i 

agent  liable  for,  though  principal  sued 292 

by  master  or  owner  of  vessel  as  to  its  character 307 

goods  f I'auduleutly  purchased 309 

action  against  assignee  of  such  goods 309 

as  a  ground  for  divorce 324,  325 

widow  not  barred  of  dower  by  joining  husband  in  fraudulent  deed.. 325,  86S 

husband  conveying  real  estate  just  before  marriage 326 

on  aged  or  imbecile  person 335,  866,  867 

person  in  confidential  relation 336 

conveyance  not  set  aside  for  if  equitably  ought  to  have  been  made 866 

must  be  the  cause  of  the  injury "..... 336 

no  action  where  injury  from  defectiveness  of  papers 336 

complaint  must  allege  plaintiff  relied  on  representations 336 

and  defendant  made  them  to  induce  plaintiff  to  do  act 336 

falsely  representing  a  neighbor  had  sold  his  hops 336 

in  I'epresenting  purchasing  as  agent 337 

not  necessary  defendant  should  be  benefited 337 

lies  for  fraudulently  inducing  one  not  to  perform  invalid  contract,  337,  738 

otherwise,  for  merely  refusing  to  deal 337 

misrepresentation  as  to  price  offered 337 

liable  for,  though  refuses  to  warrant 337 

and  notwithstanding  contract  in  writing 337 

not  pointing  out  patent  defect 337 

in  renting  house  unfit  for  occupation 337,  3G5 

otherwise,  if  condition  discoverable 338 

in  making  representation  to  arbitrator 338 

money  paid  on  award  so  obtained  may  be  recovered  back 339 

Ln  inducing  witness  to  commit  perj  ury 338 

when  principal  not  liable  for  on  constructive  notice 338 

if  transfer  set  aside,  may  stand  as  security 338,  841,  8G6 

evidence  on  which  found 338 

constable  obtained  indemnity  concealing  prior  levy 338,  350 

executor,  etc.,  may  set  aside  fraudulent  transfer 338 

in  action  to  recover  (Jamagefs,  not  necessary  to  rescind 339 

when  action  against  infant  does  not  sound  in 350 

when  relieved  against  in  cases  of  intoxication 360 

inadequacy  of  price  not  alone  sufficient 360,  866 

in  obtaining  release  or  satisfaction 366 

one  who,  with  notice,  receives  money  fraudulently  obtained 382 

effect  of,  accompanied  bj'  mistake 376 

in  purchasing  of  a  reversioner 417 

remedy  of  seller  in  case  of  fraudulent  purchase 459 

bill  to  set  aside  will  procured  through  undue  influence. .  , 481 

must  be  pleaded  as  a  defense 564 

rescission  on  ground  of,  must  be  pleaded 564 

bank    with  which  assignee  deposits  7may  set  up  assignment  fraudu- 
lent    632 

bankrupt  discharge  no  defense  to  action  to  rescind 666 

no  defense  to  surety  in  undertaking  that  principal  guilty  of 674 

under  plea  that  property  not  plaintiffs,  cannot  show  sale  to  plaintiff 

fraudulent 674 

selling  art  of  preparing  medicine  and  allowing  to  use  seller's  name  on 

labels   676 

in  suppressing  facts,  how  far  prevents  statute  of  limitations  from  run- 
ning   681,  682 

when  new  contract  deprives  of  right  to  rescind  for  fraud  in  original...  694 
woman  little  versed  in  business,  signed  contract  did  not  understand...  697 

when  complaint  in,  and  unless  scienter  plaintiff  cannot  recover 841 

representations  as  to  what  would  do  in  future  not  fraud 841 

alleged  conveyance  fraudulent  proved  it  amounted  to  a  mortgage 841 

length  of  time  before  and  after  transaction,  condition  of  party  may  be 
shown  discretionary 867 


INDEX.  949 

FRAUD  —  Continued.  page. 

married  woman  cannot  avoid  for  fraud  of  husband  unless  duress 867 

if  parties  to  def i-aud  another  insert  wrong  consideration  estopped 867 

See  Debtor;  DiSAFffiRMANCE ;  Rescission;  Wakranty. 

FRAUDS,  STATUTE  OF : 

not  uecessai-y  to  allege  conti-act  within,  is  in  writing 205,  255 

complaint  need  not  allege  agreement  in  writing 339 

one  party  cannot  act  as  anient  for  other 3.39 

one  who  refuses  to  perform  void  contract  cannot  recover  amount  paid,  382 

885 

nor  hold  other  liable  for  crops  sowed 873 

agreement  by  debtor  to  pay  debt  to  third  person 407 

rule  of  damages  where  work  to  be  paid  for  in  land 4S8 

if  contract  void  by  party,  caimot  recover  for  worlc 491 

so  under  agreement  for  lease  if  will  make  repairs 471 

remedy  by  suit  for  speciiic  pei-f ormance 491 

except  when  fraudulently  induced  to  perform  the  work 491 

defendant  to  deny  agreement  or  plead .505,  555,  867 

agreement  to  pay  for  releasing  from  contract  void  under,  without  con- 
sideration  668 

if  contract  for  lease  void,  tenant  to  have  crops  then  growing  not  liable 

for  cutting 565,  674,  873 

agreement  by  one  interested  in  performance  by  contractor  to  pay 674 

agreement  presumed  on  demurrer  to  be  in  writing 674 

remedy  to  deny  making  of  agreement 674 

to  employ  one  for  one  year  to  commence  in  future  void 674 

but  on  second  year  j ury  find  new  valid  agreement 674 

delivery  by  seller  not  sufficient,  buyer  must  accept 675 

property  purchased  on  several  different  days  at  auction,  delivery  of  part,  867 

See  License;  Vendor  and  Vendee. 

FRESHETS : 

injuiy  from  not  providing  proper  culverts «  387 

FRIVOLOUS :  • 

deTiials  not  stricken  out  as .546 

when  matter  in  mitigation  is ;••••. ^^ 

allegations,  plaintiff  not  owner  without  denying  facts  showing  is,  are 

frivolous 681 

denial  of  all  matters  inconsistent  with  answer 687 

after  motion  on  ground  of,  may  amend  of  course 831 

See  Sham;  Irrelevant  and  Frivolous. 

FRUIT : 

rights  of  parties  to  growing  on  trees  on  or  near  line 296 


GAMBLING : 

how  money  lost  at,  to  be  sued  for 193 

employer  may  sue  one  winning  money  from  clerk 214,  .340 

complaint  to  recover  money  lost  at 339 

I'ecovery  for  money  so  lost 339,  .340 

master  of  vessel  liable  to  p.arent  for  money  lost  by  son ' 340 

money  lost  at.  may  be  set  vip  as  counter-claim 632 

officer  may  retain  instruments  for 332 

Sf.n  Illegal  Contract. 

GAME : 

action  for  frightening 395 

GAS  COMPANY: 

liability  of,  for  negligence. 340 

how  bound  to  funiibh  meter  fui'  eacli  tioor. .  .    340 


950  INDEX. 

GIFT :  PAGE, 

may  be  shown  under  denial  of  ownership 5G6 

when  to  wife  invalid <575 

must  be  actual  and  positive  change  of  possession 675 

if  alleges  was  in  case  of  death  at  any  time  not  sustained  by  one  mortis 

causa 84:2 

requisites  of 867 

GOOD  FAITH: 

how  pleaded  in  mitigation 67S 

See  Bona  Fide. 

GOOD  WILL: 

what  one  who  sells  may  do 341 

each  partner  on  dissolution  may  use  name  of  firm 341 

unless  one  buys  other  out 341 

is  property,  and  may  be  sold 341 

GOODS  SOLD: 

action  for,  on  ground  credit  fraudulently  obtained 141 

wai  dug  fraud  and  suing  for , 190 

when  need  not  allude  to  check  or  note  received 191 

complaint  for : 198,  199-204 

paying  earnest  and  furnishing  cloth  for  packing  not  delivery 341 

so  vendee  furnishing  boxes 341 

sale  of  specific  goods  vests  title,  and  may  sue  for  goods  sold 342,  8o8 

but  until  delivery  vendor  has  lien  for  purchase  price 342,  868 

and  after  request  to  pei'form  and  notice  may  resell 342,  868 

and  charge  vendee  with  deficiency 342,  868 

need  not  notify  vendee  of  time  and  place  of  sale 342 

vendor  must  sell  according  to  custom  or  in  usual  manner 342 

vendee,  after  inspection,  may  return  goods  not  according  to  contract,  342,  868 

if  vendor  i-efuses  to  receive  may  sell  and  recover  deficiency 342,  868 

vendor  cannot  resell  without  offer  to  perform  and  notice 342,  868 

if  does  vendee  may  recover  amount  paid 342,  868 

but  no  damages 342 

if  vendee  refuse  to  perform  cannot  recover  what  he  has  paid 342 

though  vendor  resell  for  advance 342.  868 

sale  of  specific  quantity  out  of  a  greater 342 

provided  appeal's  parties  intended  title  should  pass 34^3 

bill  of  lading  of  wheat  on  ship,  part  not  in  fact  loaded 343 

See  Sale;  Vendor  and  Vendee. 

GRANT.    See  Conveyance. 

GRANTEE: 

when  may  sue  in  name  of  grantor 73 

GRANTOR: 

when  grantee  may  sue  in  name  of 73 

GUARANTOR: 

cannot  be  sued  with  maker 125,  126,  127 

except  when  part  of  same  contract 125 

remedy  in  such  cases 125,  126 

GUARANTY : 

of  payment  of  rent  by  tenant 343 

evidence  admissible  to  show,  intended  to  cover  future  dealings 343 

for  price  of  "  chamber  suits  "  not  liable  for  parts  of  suits 343 

when  guaranty  held  continuing 343,  8fi8 

when  revoked  by  death 868 

construction  of  guaranty  of  "  collection  " 343 

debtor  must  be  prosecuted  within  reasonable,  time 343,  344 

even  though  reside  out  of  State  wheyi  given 344 

otherwise,  if  moves  out  after 344 

nnreasonable  delay  discharges  guarantor 344 


INDEX.  951 

GUARANTY  —  Continued :  page, 
of  "  payment  and  collection  "  ia  of  collection  merely 344 

so  on  collection  of  bond  and  mortgage 344 

otherwise,  as  to  " deficiency"  on  foreclosure 344 

that  maker  is  good  is  of  collection 344 

otherwise,  that  note  is  good,  and  will  be  paid  at  maturity 344 

waiver  of  foreclosure  does  not  waive  suit  on  bond 344 

omission  to  file  transcript  no  discharge,  unless  debtor  has  real  estate.. .  344 
prosecution  of  debtor  must  be  in  good  faith ;  344 

and  with  reasonable  care  and  skill . .   344 

when  may  be  countermanded  (see  3  Eng.  Rep.  273,  n.) 344,  675,  868 

of  all  debts  *'  until  notice  "  binds  executors 344 

See  Surety. 
GUARDIAN: 

when  may  maintain  action  in  own  name 57,    93 

appointment  of,  for  infant  plaintiff 57 

effect  of  not  appointing,  for  infant  plaintiff 57,    58 

effect  of  not  appointing,  for  infant  defendant 58,    59 

when  appointment  for  infant  unnecessary 58 

must  allege  appointment  of 226 

to  verify  complaint 283 

liable  personally  to  attorney 300 

agreement  that  surety  shall  control  funds 3.50 

liability  of,  for  malicious  prosecution 371 

lease  of  in  socage  only  good  so  long  as  guardianship  continues 675,  868 

new  guardian  may  terminate 675,  868 

may  be  added  by  amendment  at  any  time 827 

when  not  decreed,  to  give  sj)eciflo  performance 893 

See  Infant. 

HEIRS : 

who  to  be  defendants  in  suits  against 110 

when  one  of  several  may  sue Ill 

when  defendant  in  mortgage  f orclosure 132 

when  not  bound  to  pay  mortgage 373,  467 

when  decreed  to  perform  ancestor's  contract 434 

when  does  not  take  purchase-money 434 

but  they  are  necessary  parties 434 

See  Advancement. 
HIGHWAY : 

damages  in  action  for  obstructing 321 

plaintiff  must  sustain  substantial  damages  from  obstruction 344 

merely  being  delayed  not  enough 345 

nor  is  loss  of  trade  from  temporary  obstruction 345 

relief  in  equity  against  obstruction 345 

temporary  occupation  for  building 345,  452,  869 

but  not  systematic  use  of 345 

city  may  recover  amount  paid  in  consequence  of  negligence 345 

digging  pit  on  own  land  near  highway 3*6 

digging  post-holes  near. . 384 

owner  of  vault  under 384 

covering  removed  by  stranger 384 

traveler  injured  by  one  clearing  railway  track 386 

requisites  of  complaint  for  obstructing 404 

plea  that  plaintiff  was  injured  in,  through  his  own  negligence 684 

ov^seer  has  no  right  to  turn  water  on  adjoining  owner , 869 

putting  property  in  or  near,  which  frightens  horses 881 

See  Commissioners  of  Highways  ;  Municipal  Corporation  ;  Negligence. 

HIRING : 

if  contract  for  coach  from  A  not  compelled  to  take  one  from  C 486 

HORSE  RAILROAD: 

when  tax  payer  may  restrain  laying  down 443 

one  cannot  restrain  another 443 


952  IKDEX. 

HUSBAND  AND  WIFE:  page. 

when  to  be  joined 53,  55,  61,  89,  869,  870 

effect  of  improper  joinder  (note) 55 

suit  against,  for  debt  contracted  before  marriage 60,  93,  123,  123,  8G9 

■wtien  husband  may  or  may  not  be  joined  61 

husband,  in  some  cases,  to  be  brought  in,  and  how 101 

cannot  join  wrongful  acts  of  husband  with  those  of  wife 143 

nor  claim  against,  with  one  by  wife  ditm  sola 145 

when  husband  liable  for  support  of  wife  as  pauper 204 

demand  of  wife  not  good  against  husband 32-'} 

when  wife  to  be  defendant  in  ejectment 327 

rights  of  husband's  representative  in  wife's  estate 329 

rights  of  husband  therein 329 

right  of  husband  in  legacy  to  wife 329 

married  woman  liable  for  negligence  of  her  servant 346 

when  wife  liable  for  her  acts,  husband  present 346 

husband  must  be  joined  in  actions  for  her  torts 346,  870 

execution  in  such  cases 346 

wife  cannot  be  arrested  on  mesne  process 346 

husband  not  liable  for  wife's  conversion,  if  claims  as  her  separate  prop- 
erty  346 

wife  marries  pending  suit 347 

husband  cannot  recover  of  wife's  father  for  merely  harboring 347 

or  advising  her,  if  acts  honestly,  though  on  false  information 347 

so  a  stranger 347 

when  stranger  liable  for  inducing  wife  to  leave  husband 347 

may  recover  for  goods  sold  to  one  held  out  as  wife 347 

so  for  necessaries  furnished  wife  pending  divorce  suit 347 

when  husband  liable  for  goods  sold  wife 347 

in  equity  for  money  lent  for  support 347 

allegations  in  action  for  money  lent  wife 347 

when  husband  liable  for  costs  incurred  by  wife 348,  869 

when  liable  for  burying  wife 348 

wife  ordered  repairs  of  house,  husband  lunatic 348 

druggist  liable  for  selling  wife  laudanum 348 

after  judgment,  cannot  show  prior  husband  of  wife  living 348 

effect  of  executrix  marrying  pending  suit 662 

when  note  of  wife  void  for  dui-ess  of  husband '  670 

when  deed  not 867 

when  tender  to  wife  good  as  against  husband 700 

or  creditor's  bill  against,  if  she  die  after  issue,  cannot  have  judgment  for 

interest  devolving  upon  husband  by  such  death 843 

when  and  how  far  liable  for  wrongful  acts  of  wife 809 

husband  may  recover,  of  carrier,  for  wife's  jewelry 887 

See  Married  Women;  Parties;  Speclfic  Performance. 

HYPOTHETICAL : 

when  pleading  cannot  be 271 

remedy  for  such  pleading 272 

such  a  defense  inadmissible  in  slander  and  libel 572 

how  far  such  a  defense  allowable 602-605 

pleading  not  made  good  by  liberal  construction 805 


ICE: 

liability  for  negligently  throwing  from  roof 375 

injury  from  ice  in  street 391 

from  falling  from  roof ^. .  302 

right  to  cut  or  remove 480 

IDIOTS,  LUNATICS,  ETC. : 

how  to  appear 54     56 

how  action  to  be  brought 54,  56,  90,  91-93,  107 

how  far  a  contempt  of  court  to  sue 54 

effect  of  suit  against  without  leave  of  court 54,  127 

how  sued 127 

when  committee  of,  liable  for  support 204 

must  allege  appointment  of  committee k2i> 


INDEX.  953 

ILLEGAL  CONTRACT:  page. 

if  complaint  shows  illegal,  demurrer  lies 349 

but  if  not  necessarily  so,  j^resurned  legal 349 

plaintiff  need  not  allege  is  not  illegal 349 

a  contract  to  pay  amount  of  mortgage,  etc 349 

agreement  by  bidders  to  pay  for  withdrawing  bids 349 

note  given  officer  for  violating  duty 349 

agreement  to  pay  if  will  not  oppose  will 349 

allegations  in  such  case 349 

so  if  will  not  move  to  set  aside  sale 350 

agreement  to  pay  expert  more  than  legal  fees 350 

agreement  by  guardian  that  surety  shall  control  funds 350 

mere  stockholder  cannot  object  that  contract  illegal 350 

unless  court  compelled  to  carry  out  illegal  agreement 350 

not  illegal  to  raise  money  to  aid  revolutionary  struggle  elsewhere 350 

when  surety  may  recover  amount  paid  on 383,  699 

contract  for  future  cohabitation  illegal 426 

how  far  past  cohabitation  a  good  consideration 426 

that  contract  illegal  must  be  pleaded 563 

contract  to  let  horse  on  Sunday  illegal 675,  870 

but  bailee  liable  for  willful  injury 675,  870 

one  holding  license  to  sell  bar  and  right  to  sell  liquor  is 675 

so  to  tend  bar  for  one  having  no  license 870 

agreement  by  attorney  to  carry  on  suit  and  pay  expenses 675 

agreement  to  sell  goods  not  owned  by  vendor  not  necessarily  illegal.. ..  675 
agreement  by  rival  lines  boats  not  to  extend  line  beyond  certain  point..  675 
seller  may  recover  for  goods  though  knew  buyer  intended  to  smuggle,  675,  870 

if  partners  carry  on  contrary  to  law,  neither  can  recover 675 

one  requiring  license  selling  without 676 

effect  of  agreement  by  members  of  trades  union 676 

selling  art  of  preparing  medicine  and  allowing  to  use  seller's  name  on 

labels 676 

entering  into  partnership  for  illegal  business 870 

contract  void  in  part  is  void  in  toto 870 

to  drive  omnibus  on  Sunday 905 

See  Duress. 

IMMATERIAL  ISSUE: 

what  is 784-788 

how  disposed  of 785-788 

not  to  be  tried 786 

IMMATERIAL  MATTERS : 

defendant  need  not  deny 505,  521 

IMMEDIATELY : 

agreement  to  do  act  immediately 410 

See  Irrelevant  Matter. 

IMPERTINENCE : 

what  is 239,  241 

IMPERTINENT: 

matters  not  to  be  stated 228 

may  be  stricken  out 590 

IMPOSSIBILITY: 

not  sufficient  that  difficult  or  expensive,  must  be  impossible 676 

•     no  defense  to  carriers  that  hands  struck  and  refused  to  work 676 

nor  that  after  contract  statute  passed  making  more  burdensome 676 

nor  does  accident  or  unforeseen  occurrence  excuse 670 

but  act  of  God  does , '. 676 

INADEQUACY  OF  PRICE: 

how  far  evidence  of  fraud S60,  866 


954  INDEX. 

INCIDENT :  page. 

when  grant  of  mill  carries  raceway 478,  479 

right  to  water  can  only  be  granted  as  an  incident  to  land 480 

INCONSISTENT : 

relief  asked  for  must  not  be 31,  32,  229 

defenses  not  to  be 595 

what  are 595-598 

remedy  if  does 598 

when  reply  inconsistent  with  complaint 719-72:i 

how  objection  that  is  to  be  raised ...721,  722 

in  slander  and  libel  denial  and  j ustification  are  not 572 

INCORPORATION : 

not  necessary  to  allege 350 

See  Corporations. 
INCUMBRANCES : 

when  covenant  against  broken  by  right  to  water  of  spring 473 

as  to  right  of  way 473 

warranty  against,  by  seller  in  possession 473 

INDEBITATUS : 

count  in 197-204 

INDEFINITE  AND  UNCERTAIN : 

when  aUegatious  are 268 

remedy  for 268 

this  relief  may  be  resorted  to  in  many  cases  where  demurrer  proper....  837 

See  Definite  and  Certain. 

INDEFINITENE3S.    See  Definite  and  Certain. 

INDEMNITY : 

liability  and  damages  on  bond  for 303,  452 

good  though  officer  does  not  disclose  prior  levy 338,  350 

INFANCY:  -See  Agent. 

to  be  pleaded 563 

disaffirmance  on  ground  of,  must  be  pleaded 564 

merely  not  pleading  in  foreclosure  where  sold  property  does  not  render 

liable  for  deficiency 676 

otherwise,  if  retains  property  after  arriving  at  majority 677 

INFANTS: 

how  appeared  before  Code 53,  55 

how  since  Code 57 

appointment,  guardian,  infant,  plaintiff 57,  58 

effect  of  not  appointing  guardian  for  infant  plaintiff 57,  58 

effect  of  not  appointing  for  infant  defendant 58,  59 

when  appointment  of  guardian  for,  unnecessary 58 

how  to  appear 53,  55 

born  after  suit  commenced 100 

allegations  as  to  appointment  of  guardian 2126 

allegations  against,  in  foreclosure 227 

facts  must  be  proved  in  actions  where  parties 227 

guardian  to  verify  complaint 283 

when  action  against  sounds  in  fraud 350,  351 

action  to  recover  for  goods  delivered  to,  for  sale 351 

not  liable  for  mere  note  for  same 351 

liable  for  money  expended  for  necessaries 351 

mother  of,  cannot  give  notice  in  ejectment 351 

if  father  appointed  guardian,  presumed  properly  done 351 

liability  of,  for  malicious  prosecution 371 

when  liable  in  tort,  and  when  change  of  action  renders  liable 459 


955 


INDEX. 

FAQB. 


infancy  persoual  privilege,  and  non-joiuder^of  infant  good  defense  . ....  498 


and  mortgagee  liable  to  vendee o„^ 

navment  of  iudgment  to  pi-oc/ixen  aj»ii  valid °'" 

wlieu  guardian  Sf ,  not  decreed  to  specifically  perform , ....  893 


INFANTS  —  Continmd 

infancy  personal  pri  — ^  ,  .  „ 

when  order  by,  good  defense  to  action  by  parent.     -     .    ^  ^      ,        ,    „,  , 

^  action  against,  for  goods  sold  must  amend  complaint  to  fraud,  and  ^^^ 

cannot  set  up  in  reply ... ... • g^K 

mav  discontinue  against,  without  costs. . .........._ 

next  friend  may  be  added  by  amendment  at  any  time »-■ 

chattel  mortgage  of  voidable  and  subsequent  sale  avoids 8< 0 

and  mortgagee  liable  to  vendee 

navment  of  judgment  to  prochien  aj»ii  valid 
^-  -•       '-^  -—'^ -^-^creed  to  specific?'"' 

See  Guardian. 

INFERENCE :  2gg 

matters  not  to  be  pleaded  by  way  of !"!!,'!!!!!!!!  270 

meaning  of " 

INFORMATION  AND  BELIEF:  ^^ 

how  far  allegations  may  be  on .^^ 

when  party  cannot  allege  or  deny 575-577 

when  party  not  allowed  to  deny 534-545 

form  of  denial  by 

INJUNCTION:  ^„, 

facts  must  be  alleged,  and  it  must  be  prayed  for rg% 

if  iniury  completed,  court  will  grant  mandatory •.•'r'- o^5 

preotiou  of  building  not  restrained  because  darkens  window •  •  rf&- 

liStoreSn  using  building  or  property  except  for  Purpo|e^cove-  ^^^ 

nanted • •. •  •,  •. '        '  352 

+0  restrain  waste  after  decree  in  partition ' '.;':•", ,■;  ;* 

will  not  Ko  restrain  railway  from  running  trains  until  land  .soWis  ^^^^ 

paid  for • 353 

lies  to  restrain  disclosing  secret  process  •••..•••  •••••" 350    u'r] 

when  actor  or  singer  restrained  from  acting  elsewhere ^M,  »^ 

final  not  usually  granted  unless  prayed  for ^^^ 

so  a  temporary  injunction 3^3 

not  granted  to  restrain  a  mere  trespass g,,g 

to  restrain  publication  of  letter. ^q^ 

to  restrain  taking  down  party  wall 406    886 

lies  to  restrain  acting  of  play _'  ^Qg 

so  photographing  a  painting •  •  •••••• AQr. 

to  restrain  publication  on  register  of  protested  paper *|j^ 

to  restrain  laying  railway  in  street ". '. !  445 

in  cases  of  trade-marks • •  • .•  •  •  • ^r-- 

to  restrain  removal  of  trees  cut  on  mortgaged  premises ^75"  476 

to  restrain  waste  by  tenant '  ^gQ 

to  restrain  cutting  or  removing  ice  . ^gg 

suit  in  another  State  sometimes  stayed 

See  Landlorb  AND  Tenant;  Trade-mark;  Water-c©urses. 

INN-KEEPERS:  ^     ^  ^^g^  2^g 

actions  against •  •  •  • '.'.'.'.'.353,  871 

liability  for  horse  kicked  by  another - '  „^ 

owner  of  nroperty  loaned  or  hired  not  a  guest •_ „^ 

tlTJugh  inn-keeper  liable  to  him  if  actual  tort  or  negligence oo4 

mav  be  a  guest  though  stays  for  months. 3^ 

has  lien  on  goods  of  third  person ^^1^ 

^'ZiSX'XSi^^S^i week- paying  .ir,edpric=: W^  m 

INSANE  PERSON :                                               .    .  „„. 

liability  of  physician  for  reporting  that  one  is  insane o»« 

INSOLVEN(^Y:  ggg 

not  presumed ..••• 


956  INDEX. 

INSUFFICIENT  REPLY ;  page. 

how  objection  that  is  to  be  taken 721,  7:i:i 

HSrSURANCE : 

one  partner  selling  to  another  not  sale  within  condition 298 

complaint  in  such  case 298 

to  A,  loss,  if  any,  payable  to  B Sbi 

when  subsequent  erection  of  steam  engine  does  not  avoid 677 

by-law  that  suit  shall  be  brought  in  particular  countj' 677 

that  suit  shall  be  brought  in  State  where  company  located .-  677 

that  suit  shall  be  brought  within  one  year  from  loss 677 

fact  that  not  so  brought  must  be  pleaded 872 

slight  evidence  of  waiver  thereof  sufficient ,  677 

clause  that  amount  to  be  fixed  by  dii-eotors,  and  if  dissatisfied  suit  to  be 
brought  within  four  months  does  not  apply  to  action  for  amount  fixed,  677 

does  not  apply  until  right  to  sue,  though  clause  "  after  loss  accrue," 677 

tender  of  premium  equivalent  to  payment 703 

one  insured  by  accidental  policy  guilty  of  negligence 882 

INTENT : 

when  immaterial 225 

bad,  not  alone  actionable 455,  460 

of  plaintiff,  need  not  be  answered 605 

INTERPLEADER: 

at  common  law 355 

equitable  interpleader ■. 355 

suit  in  nature  of  bill  of 355 

what  complaint  should  state  and  offer  to  do 355,  356 

affidavit  to  be  annexed 356 

judgment  plaintiff  entitled  to 356 

preliminary  trial  as  to  rights  of  plaintiff 356 

plaintiff  not  obliged  to  serve  defendant's  answers 357 

how  defendants  to  obtain  copies  thereof 357 

one  defendant  issuing  commission 357 

judgment  that  defendants  Interplead 357 

how  their  rights  determined ;,:,;' 

practice  where  a  defendant  asks  for  under  Code 357,  3()0 

one  party's  claim  may  be  legal  and  other's  equitable 360 

when  plaintiff  not  entitled  to,  but  must  pay  costs 360 

when  one  defendant  obliged  to  pay  to  another 360 

lies  between  parties  claiming  a  reward 360,  872 

between  towns  in  case  of  tax 442 

INTOXICATION : 

when  relief  granted  in  cases  of 360,  872 

at  time  of  contract,  must  be  pleaded 563 

IRREGULARITY  : 

how  attorney  should  appear  on  motion  for 157,  158 

curing  after  motion 154^  778 

cannot  be  corrected  after  motion  witbout  paying  costs 820 

but  may  after  paj^ers  prepared  if  not  served 821 

how  far  process  irregularly  issued  a  protection 873 

IRRELEVANT  AND  REDUNDANT  MATTER: 

allegations  of  charge  and  pretense  stricken  out 30 

nor  for  discovery 49 

matters  of  evidence  not  be  pleaded  as  facts 39 

not  be  set  out 228 

demurrer  cannot  be  used  to  strike  out 735,  754,  761,  771 

cannot  move  to  strilce  out  entire  defense  or  answer 771 

one  defendant  cannot  set  up  rights  as  against  anotiier 591,  610 

demurrer  will  not  lie  if  mixed  with  good  defense :  remedy  by  motion..  591 

if  whole  answer  bad,  remedy  to  demur 591,  593 

but  see  where  entirely  irrelevant 593,  594 

what  is  irrelevant 591,  595 

motion  takes  phice  of  exceptions  for  impertinence 591,  .592 

conclusions  of  law 592 

test  to  see  whether  can  be  put  in  issue 593 

recitals,  stories,  conversations,  etc 59JJ 


INDEX.  957 

IRRELEVANT  AND  REDUNDANT  MATTER  —  Confi'nued :  page. 

statement  to  discredit  witness 592 

whea  matter  will  not  be  expunged  if  affects  other  matter 593 

allegations  must  be  in  ordinary  and  concise  language 594,  595 

and  without  repetition 594,  595 

when  stricken  out  of  reply 718 

including  such  matter  ought  not  to  be  encouraged  but  party  punished 

for 821 

what  is ,239,  240,  241 

remedy  for 240 

waived  unless  motion  to  strike  out 240 

when  motion  to  be  made  and  waiver  of 240 

party  must  be  aggrieved 240 

when  is ^40,  241-243 

if  not  subject  of  issue 246-252 

trivial  and  unimportant 243 

matters  not  necessary  to  establish  cause  of  action,  when  proper 243 

as  to  aggravate  damages 245 

as  to  costs 248 

special  damages 244 

how  such  damages  to  be  alleged 245 

what  are  and  what  not 245,  246 

when  must  be  alleged 245 

in  slander 246 

must  specify  part  objected  to 250 

entire  pleading  not  struck  out  as 250 

but  if  part  only  must  be  by  motion 250 

statement  of  facts  showing  right  to  arrest 250-253 

what  allegations  are 253 

what  not 254 

allegations  against  those  not  parties 253 

multiplicity  of  matters 257 

if  irrelevant  matter  mixed  with  proper  remedy  by  motion 266 

may  be  stricken  out 590 

so  if  scandalous  or  impertinent 5^0 

facts,  not  evidence  of,  to  be  pleaded 590 

that  plaintiff  had  unreasonably  refused  to  make  partition 590 

iSee  Sham,  etc.  ;  Surplusage. 
ISSUE : 

definition  of 779,  780 

of  two  kinds,  of  law  and  of  fact 780 

definition  of  each 780 

may  arise  upon  different  parts  of  same  pleading 781 

but  must  be  to  entire  cause  of  action  or  defense 781 

what  are  material  issues 781 

must  be  single,  and  explanation  as  to  what  is 782 

must  be  certain,  and  explanation  as  to  what  is 783 

must  be  material  and  meaning  of  term 505,  515,  783 

what  is  an  immaterial  issue 784 

what  is  a  material  issue 784-788 

any  thing  which  bears  upon  relief  asked  for 784 

formerlj'  immaterial  issue  disposed  of  by  repleader 785 

in  what  cases  it  was  ordered 785 

how  far  may  be  ordered  since  Code 786,  788 

judgment  on,  may  be  ordered  7io?i  obi<tante  veredicto 786 

so  where  complaint  does  not  state  cause  of  action 786 

immaterial  issues  not  to  be  tried 786 

judgment  to  be  sectindum  allegata  et  probata 787 

how  issues  tried - 788 

when  settled  in  equity  cases  for  jury  trial 791 

definition  of,  by  court  of  appeals 813 

See  Place  of  Trial;  Trial. 

JOINDER  OF  ACTIONS : 

of  legal  and  equitable  actions  or  defenses,  allowable 26 

as  executrix  and  devisee •  •  •  •  IJ** 

so  contract  with  deceased  and  with  representative 110,  873 

but  if  relief  sought  individually  and  as  representative 110 

nor  against  part  individually  and  part  as  trustees 110,  873 


958  IKDEX. 

JOIISTDER  OF  ACTIONS— Conimwed:  pagb. 

nor  can  plaintiff  unite  cause  of  action  individually  and  aa  representative,  110 

nor  individually  and  as  one  of  public Ill 

nor  actions  against  all  jointly  and  some  severally Ill 

but  may  for  a  legacy  charged  upon  laud  devised  and  for  money  had  and 

received Ill 

against  malier  and  guarantor 125,  126,  127 

what  may  be  joined 130,  134 

legal  and  equitable  causes  (see  equitij  —  law) 140,  141 

what  arises  out  of  the  same  transaction 136,  148 

specific  performance  and  for  use  of  premises 137,  141 

for  reformation  of  contract  and  damages 137,  140,  141 

to  recover  for  work  and  labor  and  to  set  aside  fraudulent  award  thereon,  139 

goods  sold,  money  had  and  received 139 

but  not  goods  sold  and  one  where  gravamen  is  tort 142 

nor  assumpsit  and  tort 142 

malicious  prosecution,  libel  and  slander 139,  147 

assault  and  battery  and  false  imprisonment 139 

assault  and  battery  and  crim.  con 147 

injuries  to  person  and  property 139 

injuries  to  real  estate 139,  143 

but  not  ejectment  and  for  damnpes  to  land 143 

injuries  to  stereotype  plates  and  not  printing,  etc 140 

for  surplus  on  mortgage  sale  and  delivery  of  notes 140,  147 

in  partition  against  one  defendant  for  lien  and  other  for  moneys  paid  to 

extinguish  liens 141 

in  actions  to  set  aside  different  fraudulent  transfers 108,  140,  141 

ejectment  and  for  rents  and  profits 143,  147 

ejectment  and  trespass 143 

dower  and  for  rents  and  profits 140 

consignee  against  carrier  for  conversion  and  for  sum  overpaid 140 

different  causes  against  constable 140 

for  detaining  property  and  injuring  it 140 

for  goods  sold  and  to  rescind  contract  and  recover  price  immediatelv  . .  141 

must  affect  all  the  parties 141,  143,  144,  148 

in  favor  of  all  the  plaintiffs 141,  144,  148 

and  against  all  the  defendants 141,  144,  148 

claim  in  favor  of  and  against,  personally,  and  as  survivor 115,  146 

what  may  be  united  as  injuries  to  person 147 

what  as  injuries  to  property 147 

Code  has  not  changed  equity  rules  as  to  joinder 151 

what  may  not  be  joined  in  favor  of  and  against  defendant  individually 

and  as  representative 134,  145,  872 

but  otherwise,  personally  and  as  survivor 145,  872 

must  all  belong  to  one  of  the  designated  classes 135,  141,  144,  148 

ejectment  and  trespass 136,  143 

what  arises  out  of  same  transaction 136 

replevin  and  breach  of  contract 138,  143 

trespass  or  trover,  and  against  carrier  on  common-law  liability 138 

slander  and  false  imprisonment 139 

slander  and  assault  and  battery 141 

against  broker  for  fraudulently  selling,  and  purchaser  for  reconveyance,  143 

contract  by  testator  and  by  executor 142,  145 

action  against  husband  for  his  acts  and  also  those  of  wife 143,  145 

when  may  be  joined 143 

absolute  and  limited  divorce 142 

tort  and  assumpsit 142 

penalty  for  doing  act,  and  injunction  to  restrain  further  continuance...  143 

trover  and  replevin 143 

ejectment  and  for  damages 143,  145,  147 

breach  of  contract,  and  assault  and  taking  contract  away 143 

false  imprisonment,  and  money  had  and  received 143 

against  A  for  obstructing  light,  and  B  for  continuing 143 

against  survivor  and  representative  for  breach  <jf  trust,  and  to  reach 

trust  fund 872 

assault  and  battery,  and  trover  by  another  of  defendants 145 

must  affect  all  the  parties 148 

must  not  require  different  places  of  trial 148 

must  be  separately  stated 148 

remedy  for  misjoinder 143 


INDEX.  959 

JOINDER  OF  ACTIO'!^S— Continued.  page. 

trespass  on  lands  and  to  personal  property 749 

on  award  only  one  cause  ol  action,  though  states  facts  fully 749 

See  Demukrer. 

JOINT  CREDITORS: 

one  releasing  his  half  after  and  before  suit 663 

JOINT  DEBTORS: 

proceed  ings  in  actions  against 63 

when  the  statute  applies 63 

judgment  to  be  entered  against 63 

when  all  must  be  made  defendants 118 

if  not  jointly  liable,  cannot  be  joined VZ'Z 

except  notes,  etc l'-^^ 

and  when  jointly  and  severally  liable 122 

maker  and  guarantor 125,  126,  127 

method  of  proceeding  against  one  not  served 360 

cannot  plead  statute  of  limitations 361 

effect  of  judgment  against  one  not  served '  '361 

representatives  of,  cannot  be  summoned 361 

what  is  gist  of  action S61 

new  action  against  both  proper 361 

but  should  not  be  brought  if  statute  of  limitations  has  run 361 

proceeding  to  be  only  against  defendant  not  served 361 

form  of  summons 361 

no  provision  for  complaint 361 

what  answer  to  be  to 361 

lies  on  contract,  though  wrongful  refusal  alleged 362 

liability  of,  of  administrators  executing  joint  bond 362,  872 

allegations  upon  a  foreign  judgment  against 363 

JOINT  OWNERS: 

whether  one  of  demand  may  sue  for  his  share ■ .  498 

JOINT  OR  SEPARATE  ANSWERS : 

when  defendant  may  or  should  so  answer 609-612 

may  answer  separately  when  several  judgment  proper 609 

but  should  answer  jointly  where  interest  same •-  609 

does  not  apply  where  each  liable  to  account,  etc 609 

when  defense  personal,  and  may  answer  separately 609 

so  in  torts 610 

when  only  entitled  to  one  bill  of  costs,  though  answer  separately 610 

remedy  if  one  answer  and  other  defaults 610 

JOINT  AND  SEVERAL  DEBTORS.    See  Counter-claim. 

JOINT  AND  SEVERAL  DEFENDANTS : 

when  denial  good  as  to  some 533 

answer  of  one  no  benefit  to  another 734 

JOINT  AND  SEVERAL  LIABILITY: 

how  parties  may  be  proceeded  against 122,  125,  126,  127 

remedy  in  such  cases 125,  126 

JOINT-STOCK  ASSOCIATION: 

how  president  or  other  officer  to  sue  and  when 97 

how  sued ;  •  •  123 

when  stockholders  liable 123,  124 

how  liability  of  members  of  to  be  averred 171 

suits  by  stockholders  884 

JUDGMENT : 

how  pleaded 298 

how  foreign,  pleaded , '^^f 

in  action  upon,  should  allege  leave  to  bring  suit 362 

form  of  such  allegations 362 


960  IISTDEX. 

JUDGMENT  —  Continued.  page. 

must  allege  "  dulj  "  given  or  made 363 

or  facts  showing  jurisdiction 362 

if  foreign  judgment,  must  set  out  facts 363 

except  judgment  against  plaintiff  for  costs 362 

allegations  in  actions  upon  justices'  judgments 363 

what  not  an  appearance  to  confer  jurisdiction 362 

though  facts  must  be  pleaded,  what  good  on  plea  of  former  suit 363,  363 

if  inferior  court,  must  allege  cause  of  action  arose  within  jurisdiction..  363 

if  foreign  judgment,  facts  must  be  alleged  though  a  superior  court 363 

appearance  prima  facie  sufficient 363 

foreign  appointment  in  bankruptcy  not  sufficient 363 

allegations  upon  a  foreign  judgment  against  joint -debtors 363 

remedy  when  for  too  much 370 

may  be  pleaded  in  answer  as  duly  given  or  made 581 

what  defendant  setting  up  obliged  to  prove 581 

separate,  when  one  defendant  answers  and  other  does  not 610 

where  applied  for  on  default ,   793 

remedy  when  part  of  causes  of  action  admitted 803 

if  facts  pleaded,  any,  proper  to  be  allowed 830 

See  Canadian  Judgments;  Relief. 

JUDICIALLY  NOTICED : 

matters  so  noticed  not  to  be  alleged 228 

what  is 254 

JURISDICTION : 

when  courts  of  this  State  how  far  injury  in  another 730,  739,  872 

so  in  cases  of  maritime  jurisdiction 873 

how  question  of,  in  such  case,  determined  on  demurrer 730 

how  determined  on  motion 730 

if  has  of  subject-matter,  appearance  will  confer 873 

See  Copyright;  County  Court;  Demurrer. 

JUROR: 

privileged  aa  to  what  says  in  juiy  room 696 

.JURY  TRIAL: 

when  waived 408 

See  Issue. 
JUSTIFICATION: 

under  chattel  mortgage  or  judgment  and  levy  after  conversion 565 

under  title,  right  of  way,  etc.,  must  plead  facts 582 

when  may  be  pleaded  with  denial 585 

officer  having  two  processes  against  property,  one  invalid  . » 677 

though  declared  entered  for  another, purpose 677 

if  against  person,  cannot  justify  under  valid,  unless  arrested  on  it 678 

if  arrested  on  void  cannot  detain  on  valid 678 

if  officer  has  two  must  plead  both 678 

when  must  and  when  need  not  plead  judgment 863,  864 

under  process  irregularly  issued 873 

See  Arrest,  Exemption  from;  Exempt  Property;  Inconsistent;  Libel 
AND  Slander;  Officer. 

KNOWLEDGE.    See  Scienter. 

LACHES : 

in  moving  to  file  supplemental  complaint 288 

defendant  must  plead  as  a  defense 563 

embarrassments  by  adversary  sometimes  an  answer  to 680 

good  reason  for  refusing  injunction  to  restrain  use  of  trade-mark 704 

amendment  not  allowed  if  moving  party  guilty  of 832 

when  party  guilty  of,  not  entitled  to  specific  performance 894 

See  Reasonable  Time. 


INDEX.  961 

LANDLORD  AND  TENANT :  page. 

damages  when  landlord  does  not  repair 320 

may  be  joined  as  defendants  in  ejectment 327 

fraudulently  letting  house  unlit  for  occupation 3;?7 

otherwise  if  discoverable  by  examination .■ 338 

action  against  lessee  on  covenant  will  not  malce  alterations 3G3 

so  for  injui'ing  demised  premises 3G3 

letting  farm  on  shares,  hay  to  be  fed  to  stock,  extra  hay  belongs  to  lessee,  364 

but  lessee  in  possession  may  feed  stocls 364 

remedy  of  lessor  on  covenant  not  to  underlet 364 

lessee  restrained  from  using  contrary  to  covenant 364 

and  mere  recital  of  purpose  sufficient 364 

and  boarders  may  be  restrained  from  carrying  on  business 364 

in  ejectment  on  ground  of  forfeiture,  receiver  appointed 364 

landlord  not  bound  to  repair,  unless  agrees  to 364 

and,  if  so  agrees,  only  after  notice 364 

unless  stipulation  for  right  to  enter  and  repair 36-4 

subseqyeiit  agreement  to  repair,  without  consideration 3()4 

tenant  selling  goods  at  auction,  on  landlord's  promise,  invalid 365 

tenant  liable  to  third  person  for  want  of  repairs 364 

landlord  is  not 364 

unless  created  state  of  affairs  before  letting 365 

and  not  then,  if  tenant's  use  is  what  produces  injury 365 

landlord  of  ferry  not  liable  to  servant  of  lessee 365 

tenant  may  leave,  if  apartments  unfit  from  overflow  of  privy 365 

otherwise,  if  occupies  whole  house 365 

so,  if  trouble  may  be  discovered  and  removed 365 

no  implied  warranty  that  premises  tenantable 365 

though  guilty  of  fraud,  if  knowingly  conceals  defect 365 

if  tenant  vacates  within  reasonable  time  after  discovery 365 

tenant  necessary  as  party  in  partition  suit 401 

when  landlord  enjoined  from  dispossessing  tenant 430,  871 

when  tenant  has  not  possession,  to  maintain  action  against  third  per- 
son     431,  433 

right  of  tenant  pajang  lien  to  protect  term 438 

remedy  of  landlord  for  injury  by  tenant  or  another 450 

tenant  cannot  get  fire-wood  or  fencing  timber  elsewhere,  and  cut  as 

much 475 

but  may  cut  for  self  and  hired  man's  house 476 

unless  supply  of  timber  scanty 476 

liability  of  tenant  for  waste 475,  476 

if  landlord  lets  house  formerly  kept  for  ill-fame  concealing  fact,  liable,  632 
promise  by  former  to  deduct  from  rent  on  account  of  leaks,  without 

consideration 364,  667 

lease  void  by  statute  of  frauds,  tenant  to  have  crops  then  growing,  not 

liable  for  cutting 674,  873 

what  operates  as  surrender 693 

whether  tenant  can  set  off  damages  from  percolation 694 

damages  in  such  case,  and  how  shown 694 

See  Ejectment  ;  Lease  ;  Rent. 
LAW.    See  Equity. 
LAWS: 

public  acts  not  be  set  out 228 

private,  how  pleaded : 207 

LEASE : 

covenant  not  to  remove  hay,  straw,  etc.,  last  year 316 

assignee  of,  liable  for  breach  of  covenant 316 

covenant  not  to  use  for  particular  business 317 

agreement  to  repairs  to  be  completed  by  14th  June 405 

agreement  for  a  rent  to  be  fixed  by  arbitrators 430 

warranty  on  sale  of  agreement  for  lease 474 

on  agreement  to  lease 474 

^'ec  Assignee;  Guardian;  Landlord  and  Tenant;  Rent. 
LEGACY : 

who  to  be  defendants  in  action  by  legatees 109 

when  one  of  several  legatees  may  sue Ill 

when  legatee  sues  for,  court  to  construe  will 313 

bill  to  determine  who  legatee,  where  mistake 481 

See  Advancement. 
121 


962  INDEX. 

LETTERS :  paqb. 

person  receiving  may  recover  of  sender  in  possession  of 3G5,  407 

but  writer  may  restrain  publication  of 366,  407 

pass  to  representatives,  but  are  not  assets , 366 

belong  to  widow  and  next  of  kin 366 

libel  for  publication  of 367 

LEVY: 

cannot  deprive  lienee  of  possession 367 

rights  of  two  officers  holding  different 453 

officer  severing  guard  chain 454 

See  Exempt  Propertt. 
LIBEL: 

when  corporation  may  maintain 367 

author  for  criticism 367 

lies  for  portion  of  letter  though  balance  privileged 367 

for  letter  insinuating  against  character .* 367 

or  place  of  business 367  ' 

for  falsely  publishing  plaintiff's  marriage  to  a  prostitute 367 

so  for  libel  rendered  so  by  extrinsic  facts 367 

if  not  libelous  per  se  must  allege  special  damages 367 

against  member  of  court  martial 367 

See  PuBUCATioN ;  Slander. 

LIBEL  AND  SLANDER: 

defendants  in 129 

may  be  joined  with  malicious  prosecution 139 

complaint  in 209-213 

what  words  impute  a  criminal  offense .*.  209 

words  spoken  in  a  foreign  language 209 

when  extrinsic  facts  required  to  be  proved  must  be  averred 209,  210 

inuendo,  what  is 210-213 

cannot  be  traversed 211 

when  material  and  must  be  proved 212 

colloquium,  what  is 210-213 

illustrations 210-213 

matter  of  inducement 210,  211 

may  be  traversed 211 

how  far  malice  to  be  averred    211 

must  aver  speaking  or  publishing 212 

precise  words  to  be  set  out 212 

words  not  alleged  cannot  be  shown 212 

even  to  prove  malice 212 

unless  barred  by  statute 212 

time  and  place  immaterial 212 

charge  of  unchastity  against  female  actionable,   by  statute,  in  New 

York 213 

special  damages  in 223 

defendant  may  plead  truth  and  mitigating  circumstances 571 

defendant  may  deny  speaking,  and  justify 572 

how  far  answer  may  be  hypothetical 572 

may  plead  was  privileged 572 

but  should  plead  the  facts  showing  privilege .578-580 

must  plead  the  facts  showing  justification 573 

justification  must  be  to  entire  charge 573 

to  charge  plaintiff  was  a  thief  may  allege  various  thefts 573 

may  plead  mitigating  circumstances  without  justification 573-575 

miatter  in  mitigation  must  not  be  scandalous 575 

and  must  be  such  as  law  recognizes  as  mitigating 575 

bad  character  of  plaintiff  admissible 576 

facts  and  circumstances  to  disprove  malice 576,  577 

circumstances  must  be  such  that  mislead  person  of  intelligence 577 

must  show  had  been  informed  thereof 577 

and  he  believed  them  to  be  true 577 

that  spoken  in  heat  of  passion  from  plaintiff's  acts 577 

BO  any  facts  tending  to  mitigate  damages 577 

that  defendant  published  on  information  bad 577 

if  in  mitigation  umst  be  so  stated 577 


I]VIDEX.  963 

LIBEL  AND  SLANDER— Conh'imecZ:  page. 

whether  demurrer  will  lie  for  this  defect 577 

what  must  plead  where  reported  plaintiff  had  failed ^.  577 

whether  may  show  mitigatiug  circumstauces  not  pleaded 577,  578 

supposed  privilege  may  be  relied  upon  in  mitigation 579 

should  plead  privilege 578 

denial  of  malice  not  sufficient 579 

if  privileged  on  happening  of  events  must  show  they  happened 578 

if  privileged  no  action  lies 579 

this  defense  may  be  interposed  without  denial 579 

not  necessary  to  allege  express  malice 580 

if  necessary  to  allege  express  malice  defendant  may  rebut 580 

how  far  words  spoken  in  judicial  investigation  privileged 580 

rule  of  liability  in  such  cases 580 

answer  in  such  cases 5^0 

demurrer  not  proper  in  such  case 580 

words  imputing  want  of  skill  to  a  mechanic 580 

words  spoken  by  a  j  udge 580 

requisites  of  answer  in  slander  or  libel 581 

remedy,  if  inuendo,  not  confined  to  explanation 581 

nor  motive  or  intent 581 

but  may  deny  matter  of  inducement 581 

no  dc/eHSC  that  published  elsewhere;  that  disclosed  name  and  believed 

to  be  true 6^8 

but  such  facts  mav  be  pleaded  in  mitigation 678 

report  of  military'officer  privileged,  though  actuated  by  malice 678 

not  sufficient  to  plead  true,  but  must  state  facts  showing 678 

letter  may  be  part  privileged  and  part  not 678 

publication  of  mutual  apologies  good  satisfaction 678 

police  officer  accepts  gratuity  cannot  call  it  blackmailing 678 

though  states  facts,  liable  for  conclusions 678 

how  good  faith  to  be  pleaded  in  mitigation G79 

how  that  published  in  heat  of  passion 679 

how  that  plaintifTs  former  conduct  caused 679 

attorney  writing  to  next  friend  of  the  plaintiff  privileged 679 

if  privileged,  facts  showing  to  be  should  be  pleaded 695 

in  giving  character  to  servant  is  prima  facie  privileged 605 

otherwise  if  sinister  or  corrupt  motives 695 

if  any  evidence  of,  question  of  fact  for  jury 695 

communication  privileged  if  duty  to  make  it,  though  duty  of  imperfect 

obligation 695 

as  report  of  committee  on  importation  of  adulterated  drugs 696 

or  report  to  society  of  which  plaintiff  a  member 696 

when  proprietors  of  mercantile  agency  liable 696 

report  of  physiciaTi  that  one  is  insane 696 

what  one  says  in  reply  to  friend  of  plaintiff  as  to  whether  had  made 

charge 696 

attorney's  clerk  said  witness  to  be  indicted 696 

what  juror  says  in  jury  room 696 

what  witness  says  as  such 696 

privileged  as  to  one  of  two  persons  is  as  to  both 696 

as  what  said  to  rector  as  to  his  conduct  and  that  of  his  solicitor 696 

cannot  prove  isolated  ti'ansaction  long  before 697 

but  may  series  of  provocations 697 

and  so  in  assault  and  battery 697 

LICENSE: 

verbal,  to  build  dam  may  be  revoked 479 

must  be  pleaded .• 503 

although  may  be  shown  in  mitigation ^JJ^ 

if  one  required  to  have,  cannot  recover  for  work ■_•  •  676 

parol,  as  to  land  may  be  revoked 679,  873 

but  not  so  as  to  deprive  party  of  crops,  though  void  by  statute  of  frauds,  6^4 

873 

60  to  insert  beams  of  building  in  wall 679,  873 

but  may  be  shown  in  mitigation 8^3 

habitual  use  of  path,  warrants  finding  a  license ■■  ■■  6/ J 

to  enter  house  must  be  pleaded 503,  f>i^9 

so  to  enter  to  demand  a  debt 503,  6(9 

before  Code,  could  show  license  of  tenant  in  comuion '^04 


964  INDEX. 

LICENSE  —  Continued :  page. 

since  Code,  must  be  pleaded 704 

of  owner  after  agreement  to  convey,  but  before  conveyance,  good.. 704,  873 
one  throwing  out  soil  by,  may  sue  wrong-doer 705 

LIEN: 

fraudulent  transfer  allowed  to  stand  as 338,  866 

of  innkeeper  on  goods  of  third  person 354 

remedy  where  fraudulently  induced  to  release 366 

where  satisfaction  of  judgment  fraudulently  obtained 368 

vendor  of  real  estate  has,  for  purchase  price 366,  873 

so  purchaser  has  for  money  paid  if  vendor  cannot  perform 366,  873 

so  for  money  expended  on  faith  of  purchase 366,  873 

agreement  that  subsequent  mortgage  shall  have  priority 367 

constable  levying  cannot  deprive  lienee  of  possession 367 

foreclosure  of 367 

for  repairs,  when  conveyance  set  aside,  should  be  prayed  for 407 

of  finder,  for  a  reward 422 

of  one  finding  a  boat  adrift  and  preserving 864 

of  one  finding  and  preserving  logs 422,  491,  492 

a  sunken  canal  boat  raised 422,  679,  874 

when  vendee  has,  for  improvements  and  money  paid 431 

owner  of  one  parcel  paying  lien  on  several 468 

money  belonging  to  another  received  on  pledge 679 

when  broker  loses,  by  refusing  to  render  account 855 

agreement  to  give,  enforced 892 

action  by  lienee  against  one  cutting  timber 451 

b'ee  Substitution. 
LIGHT : 

injunction  to  restrain  darkening  window 352 

may  exclude  by  a  high  fence 368,  455 

LIMITATIONS,  STATUTE  OF: 

action  on  original  cause  of  action,  and  not  new  promise 306 

defense  of,  can  only  be  raised  by  answer 206 

bars  i-emedy  not  the  debt 206 

diiference  between  Code  and  Revised  Statutes 207 

not  proper  to  anticipate  in  complaint 255 

party  proceeded  against  as  joint  debtor  cannot  plead 361 

right  of  some  debtors  to  redeem,  where  debt  of  others  barred 412 

no  presumption  of  payment,  if  owner  of  equity  insolvent 413 

when  commences  for  digging  so  house  falls 449 

not  sufficient  to  allege  time  of  making,  must  confine  to  delivery 568 

if  debt  barred  payment  of  part,  in  full  wiU  not  revive 662 

nothing  less  than  statutory  period  bar  against  directors 687 

agreement  suit  shall  be  brought  within  one  year 677 

slight  evidence  of  waiver  sufficient 677 

clause  directors  shall  fix  amount,  and  if  dissatisfied  to  sue  within  four 

months,  does  not  apply  to  action  for  amount  fixed 677 

clause  does  not  apply  until  right  to  sue  commences 677 

when  short,  applies  in  favor  of  executors  or  administrators 679,680 

assignee  may  avail  himself  of,  against  set-off. 680 

of  another  State  no  bar,  if  not  by  law  of  forum 680,  875 

but  see  in  Wisconsin 875 

presumption  of  payment  to  be  raised  by  plea  of  payment 680 

payment  by  mortgagor  continues  mortgage  against  his  grantee 680 

note  payable  on  assessment 680 

if  original  stock  note  I'uus  from  date 680 

if  note  of  third  person,  taken  as  security,  does  not  commence  till  that 

due 680 

where  account  settled  runs  from  that  time 680 

though  not  run,  embarrassments  by  adverse  party  sometimes  answer  to 

laches 680 

surety  wrote  creditor  to  apply  to  assignee  for  payment 681 

how  far  payment  by  debtor  or  co-debtor  prevents  running 675,  681 

fraud  in  suppressing  facts,  how  far  answer  to 681,  682 

agent  cannot  set  up  in  action  for  account 682 

debtor  residing  in  another  State,  and  doing  business  in  this 682 


INDEX. 


965 


LIMITATIONS,  STATUTE  OF  —  Continued :  page. 

runs  in  favor  of  stockholder  from  time  debt  due 682 

whieu  commences  to  run  against  attorney u»- 

he  may  sometimes  reach  money  summarily. ^f 

party  brought  in  by  amendment  may  avail  himself  of os^ 

trustees  of  corporation  for  not  making  report •••••: :;  •  •  V  v '  \y "  ^?o 

payment  to  extinguish  one  creditor's  half  does  not  revive  other's  half..  083 

when  commences  to  run  in  favor  of  sheriffs »^| 

when  indorser  pays  note g.,^ 

when  indorser  is  payee .V  •  v. «74. 

for  one  surety  against  other  for  contribution •  • '"t.''  q^a 

in  favor  of  trustee,  when  executor  refuses  to  serve  and  court  appoints,  8^4 

must  be  replied  to  counter-claim 't^ 

to  be  pleaded,  and  cannot  demur ," •■,■■'  r-'o- 

cause  did  not  arise  within  six  years  of  exhibiting  bill,  not  good  plea. . . .  /8.^ 
so  note  not  made  within  six  years  of  commencement  of  suit ^»jJ 

:S^kS^w^"?X^ia(ntVhow;notbarred.butpi^^ 

LOST  BILL  OF  EXCHANGE  OR  NOTE: 

need  not  allege  tender  of  statutory  indemnity |^| 

otherwise,  if  suit  in  equity „„^ 

or  must  offer,  by  complaint,  to  give. •,:•:;■ i^Z 

no  indemnity  necessary  where  instrument  not  negotiable ooo 


nor 


on  instrument  accidentally  destroyed 


when  action  will  not  lie  indeprnident  of  statute 368 

unless  barred  by  statute  of  limitations ^"^ 

if  out  of  State,  cannot  be  recovered  on  as ^" 

otherwise,  if  produced  on  trial g-gg    g^, 

need  not  allege  loss  of '  g^ij 

recovery  on  bank  bills ' ggg 

on  instrument  lost  after  suit ocq 

remedy  in  equity,  though  might  sue  at  law. • ^"^ 

difference  between  a  general  and  a  special  indorsement aoj 

LOST  WILL:  ^g^ 

Snifant  LTseTuptnd  asJ  iiat  Ms'^xVlu^iVe  poVsVsVion -brquieted;  633 

LUNATIC:  ^^ 

power  of  wife  of,  to  bind .oj 

when  lunatic  heir  decreed  to  perform. 

that  was  at  making  of  contract  must  be  pleaded ^"-^ 

action  for  proceeding  against  one  as 

See  Idiots,  Lunatics,  etc. 

MALNTENANCE:  ^^ 

when  bond  for,  broken 

MALICE:  .,    ^^ 

when  to  be  averred  and  when  shown  in  slander  and  libel ^n,  ^i- 

how  far  inspector  of  election  must  act  maliciously ••••••  |^^ 

may  be  inferred 4g9 

sufficient  that  act  was  wrongful ._ • .  •  • ,,,„ 

whatever  is  intentionally  done  is  maliciously  done |^^ 

how  far  a  question  in  libel  and  slander 

MALICIOUS  PROSECUTION:  ^^^ 

may  be  joined  with  libel  and  slander ^..^ 

and  with  false  imprisonment V.139,  87(5 

when  the  action  lies    ;••••: ; oqi  '  s«() 

when  complaint  not  for,  but  for  false  imprisonment *ii-  f^ 

averment  of  want  of  probable  cause  indispensable ^■ 

good  faith  not  sufficient ;  must  be  reasonable  grounds ^" 

If  judfiment  for  too  much  will  not  he  for  issuing  execution ^uj 

remedy  in  such  case * ' 


966  INDEX. 

MALICIOUS  PROSECUTION  — CoJiimMed:  pagbl 

but  lies  if  mesJie  process  for  too  much 370 

so  if  payment  made  after  judgment 370 

what  complaint  must  allege 370 

wheu  nolle  prosequi  a  sufficient  termination 370,  870 

discharge  on  recoguizance  not  sufficient 370 

but  discharge  from  the  accusation  is 876 

wheu  no  personal  service,  or  judgment  fraudulently  obtained 370 

against  corporation 3^0 

against  an  attorney 371 

infant  not  liable  for,  if  suit  instituted  by  guardian 371 

MANDAMUS : 

when  lies  to  compel  raili'oad  company  to  restore  highway 311 

MANUFACTURERS : 

allegation  ' '  sold  as  ' '  not  sufficient  to  show  they  were 172,  565 

MANUFACTURING  CORPORATIONS.    See  Officers  of  Coeporations. 

MARRIAGE : 

good  consideration  though  husband  impotent,  if  no  divorce 668 

MARRIED  "WOMAN: 

when  husband  to  be  joined  with 53,  55,  60,  89,  93,  122,  123 

effect  of  improper  joinder  (and  note) 55 

how  to  appear 59 

suit  against,  for  debt  contracted  before  marriage 00,  93,  122,  123 

when  may  or  may  not  sue  husband 61 

when  necessary  party  defendant 62 

when  charges  her  separate  estate 3?1,  683 

complaint  and  judgment  against.   371 

agreement  to  pay  for  nursing  sick  parent 371 

propex'ty  purchased  by  husband  and  used  on  her  real  estate 371,  372,  876 

when  for  fraud  of  husband  if  retains  proceeds 372,  876 

complaint  against,  for  services  in  separate  business 372 

liability  of  executors  of,  on  covenant 372 

not  liable  for  supper  on  daughter's  marriage 372 

liability  for  articles  purchased  for  support  of  family 372 

liable  for  negligence  of  servant 372 

for  mortgage  she  assumes 372 

for  rent  of  store 372 

how  far  estopped  by  representation 372 

may  recover  for  leaving  premises,  husband  absconding 372 

liable  for  purchasing  stolen  property * 372 

in  action  on  note,  answer  that  was  at  making  prima  facie  good 373 

if  sued  on  bond  of  self  and  husband  may  demur C83 

objection  that  is,  waived  unless  raised  by  demuri'er  or  answer 773,  774 

cannot  avoid  deed  for  fraud  of  husband  unless  duress 867 

See  Husband  and  Wife  ;  Parties  ;  Specific  Performance. 

MARSHALING  ASSETS : 

partner  mortgaged  property  for  firm  debts , ...  373 

after  conveyance  cannot  subject  to 373 

nor  in  favor  of  charitable  use 373 

MASTER  AND  SERVANT: 

how  negligence  of  servant  alleged 221 

action  by  master  for  enticing  servant  away 222,  223,  877 

when  master  not  liable  for  fire  negligently  set  by  servant 302 

undertaker  not  liable  for  negligence  of  driver  of  hired  carriage 373 

whe7i  master  liable  to  servant  for  injury  by  machinery 373,  374,  877 

when  guard  required  by  statute  to  be  erected 374 

for  want  of  care  in  selecting  employees 374,  877 

when  not  liable  for  injuries  incident  to  business 374,  877 

when  master  liable  for  act  of  driver ■'! "  1 

when  not  liable  for  negligence  of  servant  in  lighting  pipe 3' 4 

servant  improperly  piled  cotton  bales 374 


IJSTDEX.  967 

MASTER  AND  SERVANT  —  Continued :  p-*-Ge. 

one  having  building  erected  by  contract 374 

owners  of  vessel  for  negligence  of  pilot 374 

servant  negligently  doing  act  without  special  orders .^. .  37o 

servant  setting  dog  on  cattle 375,  399 

owner  of  boat  for  willful  act  of  master 37o 

master  not  liable  for  willful  and  malicious  act  of  servant 375 

unless  within  scope  of  authority 375 

servant  left  truck  in  street  whereby  one  injured 3^o 

servant  threw  keg  out  of  window 375 

though  one  passing  by  license 3^5 

throwing  ice  from  a  roof 3^^ 

servant  recovering  of  another  owner  for  negligence oto 

servant  of  sub-contractor  for  negligence  of  contractor's  servant 37d 

one  voluntarily  aiding  a  servant 375 

master  ordinarily  not  liable  for  negligence  of  co-servant ^lO 

master  no  cause  of  action  for  injuring,  unless  a  menial  servant 3*6 

owner  of  yacht  not  liable  for  master  firing  gun  contrary  to  orders 384 

servant  taking  master's  baggage '408 

but  may  for  own  though  master  paid 40° 

master  had  servant's  ticket  and  cars  separated 409 

master  may  chastise  apprentice ,•••/•••;•.•  noo 

in  action  for  not  teaching  apprentice ;  defense,  that  would  not  be  taught,  bScJ 
See  Negligence;  Parent  and  Child;  Work  and  Labor. 

MATERIAL  ALLEGATIONS: 

what  are "^9^-803 

MATERIAL  ISSUES: 

what  issues  are '''81.  '^^^'^^f 

any  thing  which  bears  upon  relief  asked  for '°* 

MEDICINE : 

selling  art  of  preparing,  and  allowing  to  use  seller's  name  on  labels 676 

MERCANTILE  AGENCY: 

when  proprietors  of,  liable  for  slander 696 

MERGER : 

by  judgment  against  one  partner 402 

MESNE  PROFITS: 

how  recovered '^''1,  <4o2 

MILITARY  OFFICER: 

liability  for  injury  from  firing  by  soldiers 386 

MILK : 

action  for  fraudulently  adulterating • 376 

MINISTERIAL  ACT: 

liability  of  officer  for  not  performing 469 

MISNOMER: 

must  be  pleaded ^^ 

corrected  by  amendment ^■^' 

MISTAKE: 

paying  another's  tax  by  mistake 1^^ 

in  suing  for  a  portion  of  amount  due  on  note |w 

money  paid  by •  •  • ^^J 

in  not  inserting  name  of  party  as  obligee ^^* 

must  be  mutual ^tJi 

unless  accompanied  by  fraud yJi 

must,  as  a  rule,  be  of  facts,  and  not  of  law •»'<* 


968  INDEX. 

MIST  AK'E— Continued:  page. 

exceptions  to  the  rule 376,  377 

if  deed  complies  with  agreement,  must  show  in  both 377 

when  quantity  conveyed,  but  did  not  can-y  to  bounds 377 

when  money  paid  by,  cannot  be  recovered  of  sheriff 377,  877 

so  not  corrected,  where  party  honestly  relied  on,  if  injured 377 

otherwise,  if  not  injured" 377 

money  paid,  by  third  person,  to  creditor  by  mistake 377,  877 

could  have  been  recovered  of  debtor 377 

insolvent  note  transferred  in  payment  by 377 

purchaser  paid  for  too  much 378 

no  defense,  that  party  might  have  discovered 378 

where  second  execution  creditor  consented  dormant  should  be  paid,  378,  381 
none,  if  title  believed  to  be  doubtful,  and  turns  out  void 378 

othei'wise,  if  believed  to  be  good,  and  mistake  as  to  facts 378 

mere  f orgetf  ulness  is 378 

mortgage  over-paid 378 

if  mind  of  parties  do  not  meet  is  not,  but  failure  to  contract 378 

such  a  contract  will  not  be  reformed 378 

putative  father  paying,  mistakenly  believing  mother  pregnant 378 

indorser  believing  note  was  protested 378 

mistakenly  suing  for  part  of  claim,  being  balance  paid 378,  379 

either  party  may  apply  for  relief 379 

if  plan  of  property  mislead,  specific  performance  not  decreed 379 

bank  mistakenly  said  to  drawer  it  held  a  bill  of  lading 379 

if  money  bo?ia  fide  received  by,  must  be  demand 379 

otherwise,  if  received  inula  fide 379 

money  received  by,  on  sale  of  another's  property 381 

principal  may  recover  money  mistakenly  paid  by  agent 382 

money  so  paid  for  pension  or  bounty 383 

so  principal  so  paying  may  recover 382 

in  quantity  of  land  to  be  leased 431 

corrected  and  specific  performance  decreed 435 

action  for  coal  mined  by  mistake 4G0 

may  be  set  up  in  action  on  contract,  and  reformation  had 631 

so  to  restrain  turning  of  water-course 631 

consignee  cannot  claim,  shipped  in  consignor's  name  through 683 

what  necessary  in  order  to  defend  on  ground  of,  or  ignorance 683 

that  articles  accidentally  omitted  from  bill  of  sale 683 

that  part  of  a  parish  had  always  been  treated  as  part  of  another 684 

so  that  in  broker's  note  accidentally  omitted  to  conform  to  sam- 
ple    684 

cannot  be  reformed  in  collateral  action  by  persons  not  parties 693 

See  Reformation  op  Contracts  ;  Voluntary  Payment. 

MITIGATING-  CIRCUMSTANCES: 

when  and  how  far  may  be  pleaded 550 

cannot  be  pleaded  as  a  defense  except  libel  and  slander 586,  587 

how  far  matter  in  may  be  pleaded 566 

in  breach  of  promise  that  plaintiff  in  habit  of  becoming  intoxicated. ...  567 

other  improper  conduct 567 

but  must  be  specially  so  offered 567 

pleading  matter  in  mitigation  in  libel  and  slander 566 

may  justify  as  to  part  of  assault  and  battery  or  imprisonment 684 

how  far  any  matter  in  mitigation  may  be  pleaded 684 

demurrer  to  matter  in 761 

or  may  move  for  j  udgment 761 

when  matter  in  not  stricken  out 771 

facts  in,  usually  immaterial 798 

MODIFICATION  OF  CONTRACT : 

how  alleged 180 

long  course  of  dealing  may  amount  to 684 

how  far  unexecuted  sealed  contract  may  be  modified  by  parol 380,  684 

may  be  accepted  in  lieu  of  old  one 380,  684 

MONEY : 

negligently  burned 392 


iifDEX.  969 

MONEY  HAD  AND  RECEIVED :  page. 

when  may  waive  tort 139 

when  paid  through  fraud,  mistake,  etc 192,  196,  877 

how  far  count  for,  allowable 196-202 

on  failure  to  perform,  recovery  back  of  money  paid 197 

when  demand  necessary 321 

on  forged  indorsement 334 

lies  for  money  paid  on  fraudulent  award 339 

if  money  received  bona  fide  by  mistake,  demand  necessary 379 

otherwise  if  received  mala  fide 379 

principle  of  the  action 380 

obtained  through  forgery 334,  380 

will  not  lie  where  defendant  claims  under  distinct  title 380,  381 

distinction  between  such  cases  and  cases  of  forgery 381 

one  mistakenly  sold  another's  property 381 

mistakenly  consenting  another  execution  should  be  paid 378-381,  877 

when  officer  fZe  jure  may  recover  emoluments  of  officer  de/ac<o..  381,  382,  878 

principal  may  recover  money  paid  by  agent  by  mistake 382 

as  government  recovering  pension  or  bounty 382 

agent  who  sells  note  for  less  than  face  liable  for  amount  thereof 383 

one  who  with  notice  receives  money  fraudulently  obtained 382 

if  married  man  marries  woman  and  obtains  her  property 484 

See  Forgery;  Money  Paid. 

MONEY  PAID : 

one  who  refuses  to  perform  void  contract  cannot  recover  what  has  paid,  382 

unless  vendor  refuse  to  perform  must  show  his  title  bad 382 

othei'wise  where  vendor  seeks  to  compel  performance 383 

not  necessary  to  show  authority  to  pay 383 

sufficient  to  show  paid  on  authority  not  countermanded 383 

or  express  or  implied  request 383 

as  usurious  note 383 

void  or  illegal  contract 383 

unless  forbidden 383 

money  delivered  to  be  used  in  betting 383 

iudorser  paying  note  without  protest 383 

but  does  not  apply  where  surety  paj's  bill  without  protest  against 

drawee 384 

one  surety  paying  without  allowing  other  to  surrender 383 

sheriff  arrested  wrong  party  who  made  deposit 428 

when  surety  may  recover  back  amount  paid 438 

plaintiff's  agent  paid  charges  which  defendant  fraudulently  overstated,  878 
surety  paying  only  half  may  recover  that 878 

See  Money  had  and  Received;  Vendor  and  Vendee;  Voluntary  Pay- 
ments. 

MORTGAGE : 

when  assignment  of,  invalid  without  bond 297 

action  to  detei-mine  amount  due  on,  and  for  payment 310 

lies  though  complaint  erroneously  alleges  fully  paid 310 

agi-eement  that  subsequent  shall  have  priority.   367 

when  heir  or  devisee  not  bound  to  pay 373 

purchaser  under  void  foreclosure  is  assignee  of  mortgage 412 

when  executor  not  to  pay 467 

remedy  by  mortgagee  for  waste 474,  475 

when  conveyance  allowed  to  stand  as 866 

Sec  Redemption. 

MORTGAGE  FORECLOSURE : 

when  mortgagee  may  be  made  a  party 108 

allegations  against  infants 2?'" 

who  proper  and  who  necessary  parties 131,  135 

complaint  in 230 

requisites  of  cotnplaint  in 232-235 

allegations  to  bar  down 234 


970  IXDEX. 

MORTGAGE  FORECLOSURE  — ConAi/mcck  page. 

what  assig;uee  of  mortgage  must  allege 297 

allegations  when  may  elect  all  to  become  due 304 

purchaser  entitled  to  crops 454 

good  defense  that  mortgagor  rendered  services  to  be  applied  on  mort- 
gage     665 

See  Redemption. 
MORTGAGEE : 

in  possession  may  recover 451 

MOTION: 

after  made  irregularity  cannot  be  corrected  without  payment  of  costs. .  154 
to  correct  irregularity,  how  attorney  should  appear 157,  158 

MOTIVE  : 

when  immaterial 225 

bad  not  alone  actionable 455,  4()0 

MULTIFARIOUSNESS : 

if  one  defendant  connected  with  part  of  indivisible  cause  of  action  can- 
not demur  for 112 

what  is  and  when  not  allowable 263,  749-753,  878 

MUNICIPAL  CORPORATION: 

liability  for  work  to  be  paid  for  by  assessment 492,  878 

liability  of  city  for  acts  of  street  commissioner 869 

See  Negugence;  Nuisance;  Ordinance. 


NAME: 

wrong  person  of  same  name  arrested 883 

See  Complaint. 
NATIONAL  BANK : 

where  to  be  sued 793 

NEGATIVE  PREGNANT: 

what  is  an  improper  denial  by 530-534,  800,  813-815,  878 

remedy  by  motion 800 

NEGLIGENCE : 

must  allege  the  facts  showing  duty 218 

of  servant,  how  to  be  alleged  221 

need  not  be  alleged  where  vicious  animal  inflicts  injury 294,  852 

of  employer  in  letting  employee  steal  check 334 

in  leaving  blanks  in  check  or  note 334,  865 

in  signing  paper  written  with  pencil 334 

in  not  returning  counterfeit  money 335 

by  gas  company 340 

liability  of  married  woman  for,  by  servant 372 

master  of  yacht  fired  gun  contrary  to  orders 384 

digging  post-holes  near  highway 346,  384 

owner  of  vault  under  highway 384 

covering  removed  by  stranger o84 

owner  of  buildijig,  when  liable  for  injuries  during  erection 384,  879 

when  liable  for  falling  of  walls 385,  879 

railroad  company  run  over  and  cut  hose  at  fire 384,  3S5 

diseased  horses  allowed  to  run  at  large 385 

when  jumping  off  car  is 385,  880 

getting  on  car  in  motion 880 

attempting  to  cross  in  front  of  engine 385 

standing  against  stationary  car 385 

engaged  in  unloading  car  backed  against .385 

rock  fell  into  canal,  and  injured  boat 385.  388 

traveler  injured  one  cleaning  railway  track 386 

one  coming  on  to  land  by  license,  injured 386 


INDEX.  ^^^ 

,  PAGE. 

NEGLIGENCE— Confiditeti;  ^^^  gg^ 

bridge  fell • ; •    • .'  ■.■.*.','.*.■. 386',  880 

railway  company's  premises  unsate ...  386 

keeping  filthy  water  m  a  vault 386 

otherwise,  if  no  negliseuce. ;    _   _  _  ggg 

one  injured  by  macliuiery  on  exhibition •  •  • g^g 

splVnio'  crunpowder  to  child •  •  •  •. ••  •  •. : ' SSG 

inUrv  from  soldiers  firing  by  officer's  directions f^ 

servant  of  railway  shut  door  on  passenger's  hand ^^| 

railway  compan/not  providing  proper  culverts g^ 

ship  owners  for  collision  by  carelessness ■.■.■.■.387,  882 

ne"lio-ently  remaining  ignorant  ot  tacts „„„    gg., 

knowledge  may  be  inferred  from  continuance ^«7'  »b^ 

owner  of  vessel  sunk  in  a  river.   ...  387 

workmen  of  municipal  corporation ggy 

liability  of  for  condition  of  streets 388 

using  steam  engine  which  burst . . . .  •••••■•••.:;„;:: V ;' ; ". 388,  C86 

two  methods  of  doing  act,  most  da^iserou^  i  esorted  to 

rii.tv  oratuitously  performed,  workmen  negligent • 

SrUabie  to  carrier  for  not  disclosing  material  dangerous .388 

in  cases  where  dangerous  if  rnixed • . .  • gsg 

going  out  to  try  new  horse  which  ran  away ....  388 

building  let  to  spectators  fell  ...... •;•••/•••• .['.'.'.'.'.'.V. 388 

two  railways  used  same  track,  both  negligent ggg 

servants  of  railway  cut  grass  and  let  *f^^:  •;-,•- vj^ ; ; '. ". 388 

goods  ordered  in  fictitious  name ;  ^^1  yei  ed  to  him g^^ 

county  clerk  not  properly  docketing  .ludgment ^  gg^^  gg._^ 

horses  left  unattended  on  feriy  boat  .    - _  _  ggc,    gg^  > 

if  want  of  attention  does  not  contribute ...  389 

faili-ig  to  protest  draft  or  note 1 ....  389 

damages  in  such  cases. ■■■■■■•  •■•■ • ' 389 

creditor  allowing  collateral  security  to  be  lost ^  ggg    g^^ 

allowing  a  policy  of  insurance  to  expire •  ■  • gg^ 

horse  frightened  by  engine  or  fire  cracto  s  .^ • gg^ 

by  derrick  or  other  property  m  highway gg^j 

horse  left  unhitched  in  street  ...... ••;•;•.;■•  ;••;;• '.'.'.'.'.'.'. 390 

firing  gun  or  beating  drum  and  frightening  hor.e 

presumed  from  fact  that  horse  loose  in  highway ■■      gg^^ 

passer  by  inj  ured  by  ball  playing  i.^i  ^^treet .     . .  .^. . .  •  ^^.  ••;•;;;•;; 390 

one  stood  outside  omnibus  and  "iJ^^^d  by  passing  team  

one's  team  frightened  by  other's  running  hoises _  _  gg^^ 

one's  team  struck  by  wrong-doer. ggQ^  g5jL 

druggistnegligently  selling  artices  ... ...  — -^—  v^"  byanother. . .  .391,  851 

party  injured  may  recover  though  fJ^ticieb  purcuasBu     y  

onp  sold  hay  on  which  poison  had  been  spilled 

one  findinl^-ope  attached  to  his  chimney  must  no*  u^n^^^ 39} 

several  persons  hired  one  to  sink  a  ^«^er  e_ach     able ; ; ; ! ! !  i !      39! 

one  injured  another  by  glancing  ball  shot  by  him •  •  • gg^ 

injury  from  ice  in  street • _  _   . .  39;^ 

from  ice  or  snow  falling  from  root •  •  •  •  •••;,•••; ' 'l^eVs' '"  ... .392,  879 

railroad  company  fired  own  building  and  thus  bui  ned  otnei  s 

plaintiff  losing  control  of  horses  from  rein  getting  under  tail ^ 

injury  from  vicious  cow  being  driven 39^ 

.  servant  knew  floor  unsound  and  decayed ggQ 

managing  land  so  as  to  collect  water  doing  injury •  •  _  gg^ 

coals  dropped  from  engine  ........ .  •.•  •  •  ••••••  v  •-•  ;;;d «S0 

leaving  loaded  truck  in  street  by  which  child  injured gg^ 

stepping  off  train  of  cars  7^ t'en  slowly  moving  .^..^^.^                        ••••;;_  gg,, 

one  attempting  to  cross_  defective  place  "f^ "^°^f  ^I  ^^^^5^"'    ^ 880 

getting  out  to  pick  berries  leaving  child  in  charge  ot  team gg^ 

suddenly  starting  train  of  cars . . . . .  •;:•;•••••  "v.-^;  •; ' ;;.■.■ 881 

leaving  property  in  highway  which  frightens  horses ....  881 

horses  frightened  by  whistle  of  engine- .  ■■■■■■■■ '.'.'.'..'.'.'. 881 

distinction  between  railway  and  factory  whistle ...  88a 

railway  company  running  over  one  on  tracK gg^ 

railway  company  not  fencing  culvert Xu' ' '  ■i,'A.;i^ntv^Af ' ' '          .  882 

one  insured  by  accidental  policy  may  f,f  oj«^  *no^sh  ^mU^^^            •  •  •  gg.^ 

canal  contractor  guilty  of  neghgence  111  not  takng  care  ot  »"^g«      ^^g  g^g 

pulling  down  own  house  without  propping  neighbor  s ;;;;;,..  .476,  879 

burning  building  by 


972  INDEX. 

NEGLIGENCE  —  Continued :  page. 

as  xo  water-course 477 

in  building;  or  maintaining  dam 480,  880 

need  not  plead  that  plaintiffs  contributed 567,  864 

by  maker  leaving  blank  in  check  or  paper Q72,  868 

or  signing  paper  written  in  pencil  so  can  be  erased 672 

plea  that  plaintiff  was  injured  in  highway  through  his  own 684 

in  not  repeating  a  telegram 700 

Set  Master  and  Servant. 
NEGOTIABLE  INSTRUMENT: 

is,  if  payable  to  bills  payable  or  order 308 

NEW  MATTER.    See  Answer;  Counter-claim;  Defense. 

NON  EST  FACTUM : 

what  can  be  shown  under  plea  of 566 

NON  OBSTANTE  VEREDICTO : 

judgment  on,  when  issue  immaterial 786 

so  where  complaint  does  not  state  cause  of  action 786 

NON-RESIDENT : 

how  fact  that  is,  in  attachment  suit  taken  advantage  of 661 

jurisdiction  over 740-74^ 

when  need  not  be  made  parties 748 

but  facts  excusing  joinder  to  be  pleaded 748 

NOTICE : 

how  and  when  must  be  alleged 220 

when  none  necessary  in  ejectment 230 

none  necessary  in  ejectment  against  purchaser  in  default 321,  465 

constructit'e,  when  sufficient  to  charge  with  fraud 338 

mother  of  infant  cannot  serve  notice  in  ejectment 351 

necessary,  of  necessity  for  repairs 364 

unless  stipulation  for  right  to  enter  and  make .364 

may  be  inferred  from  continuance 387,  882 

when  facts  lie  peculiarly  within  party's  knowledge 393 

when  one  party  can  as  well  know  as  other 392 

diff'erence  between  notice  necessary  before  suit,  and  necessary  to  con- 
stitute cause  of  action 393 

how  pleaded 393 

when  vessel  to  be  delivered  as  soon  as  completed 393 

of  award 393 

or  by  A  to  pay,  if  B  shall  not 393 

sufficiency  of,  to  remove  nuisance 393 

particularity  required  in 393 

necessary,  if  broker  intends  to  sell ,393 

one  who  has  agreed  to  contribute  toward  repairing  dam 393 

goods  to  be  delivered  at  seller's  option  in  August 394 

when  once  given,  cannot  be  changed 394 

one  agrees  to  do  act  within  certain  time 394 

where  A  covenants  for  further  assurance 394 

when  party  may  perform  at  either  of  two  places  or  times 394 

or  one  of  two  articles 394 

or  to  deliver  articles  to  be  manufactured 394 

agreeing  to  pay  what  remainder  sells  for 394 

when  notice  to  one  of  two  persons  insufficient 394 

want  of,  must  be  alleged  by  bona  fide  purchaser 394 

pledgee  as  to  time  and  place  of  sate,  and  demand  of  debt 39-1: 

on  covenant  to  pay  what  a  servant  embezzles 394 

goods  to  be  delivered  on  five  days'  notice 395 

to  deliver  between  certain  days,  and  give  four  days'  notice 464 

xinder  agreement  to  do  certain  work,  or  pay  certain  sum 486 

of  time  and  place  of  arbitration 487 

of  defense  under  old  i>raetice 551,  .552 

broker  justifying  sale  for  iK>t  keeping  up  margin,  when  must  allege 685 

agreeing  to  ti-eat  sale  as  void,  may  gi  ve  new  notice C85 


INDEX. 


973 


NOTICE  —  Continxicd :  ^^ 

uone,  of  time  and  place  necessary .••••• na^ 

may  sell  without,  when  contract  provides  for ^ 

if  notice  given  fixes  rights  of  parties ?9 

vondee  not  bound  to  advance  money  to  save.   "°'^ 

when  vendee  may  recover  old  without  new  shares 68d 

defense  that  tW  person  had  notified  he  owned  claim faSo 

but  supplementary  proceedings  good  defense     .  ■. ^so 

not  bound  to  give,  on  purchase  of  machine,  if  worked  weU b^b 

ff  debtor  can  tender  at  two  places,  must  notify  which  chooses. -01 

Sec  Demand;  Scienter. 

NOVATION:                                                                                                             _  ^^ 
when  party  liable  on •  •  • 402 

or  performance 

Sec  Promise. 

NUISANCE:  .  ^.      •  143 

against  one  for  erecting,  and  another  continuing .^^ 

writ  of,  abolished ;  remedy .'!!!!  393 

notice  for  removal  of  ... . _ V.' ' "  V  "J 395,  883 

when  individual  may  maintain  action  for '  ^g. 

SSS^cfr^difcensersVrombuiming  embankments^ 

bridge  darkened  windows ggij 

blacksmith  shop,  flouring  mill gg^ 

board  of  health  may  abate. '^v  ''{''' '. .  395 

deposit  of  mash  from  brewery  in  a  public  river. ^ 

must  be  fixed  by  general  laws ;  particular  business  not rf^5 

public  school  not,  within  condition  of  deed ^^ 

barn  with  cellar  for  manure ggg 

city  appropriating  waters  of  a  river ggg 

factory  emitting  sulphurous  gas   ggg 

not  necessary  to  injure  health  . . . . . .... .....  •  •  •  • ggg 

no  defense  that  existed  before  plaintiff's  house ^;i» 

jl^^Ji^^tSr  ^Sf  I^SSS  nCJ  bind(A.-on  ait^^ 

liability  of  one  who  erects  but  parts  with  property b»b 

dpf ense  that  entered  to  abate,  how  to  be  pleaded «»» 

what  is  treasonable  manner  to  depend  upon  all  the  circumstances 686 

cannot  abate  simply  because  annoys  public ^^ 

one  sustaining  special  injury  may  abate  .  ••••••;••• ; ;  686 

two  methods  of  doing  work  on,  may  be  "egligence.  .^. . . . . .  •  •  •  - ^ 

if  alleges  upon  certain  premises  cannot  recover  for  an  adjoining o*- 

cannot  join  one  who  erects  and  his  grantee ggg 

requisites  of  complaint  in  action  to  abate 

See  Privy. 

NUL  TIEL  CORPORATION :                                                                             ^  ^^^ 
must  be  pleaded ; •.• 519 

but  does  not  apply  to  foreign  corporations 

NUMBERING  CAUSES  OF  ACTION:  ^^ 

every  cause  of  action  to  be  numbered *.*.','*.".'.!!!!!!!*.  809 

remedy  if  not 

See  Causes  of  Action. 

NUNC  PRO  TUNC:  ^^^   j^^ 

when  proceedings  may  be  so  taken ' 


OFFICERS :  72 

when  to  sue  on  contract  with  predecessor ••    ^ 

how  far  and  when  may  sue 


974  INDEX. 

OFFICERS  —  Continued :  page. 

how  to  sue 95 

when  revivor  against  successor  necessary 101 

when  may  arrest  without  warrant 331-334 

but  in  justification  should  plead  facts  justifying 664 

may  detain  gambling  instruments 332 

when  officer  de  jure  may  recover  emoluments  of  de  facto 381,  382,  878 

rule  as  to  liability  of 396 

supervisor  refusing  to  perform  duty  to  individual 396 

for  choosing  wrong  method  when  several  open 396 

having  valid  and  invalid  process 396 

if  arrests  on  invalid  process  cannot  again  on  valid 397 

breaking  door  where  several  persons  occupy  house 397 

liability  for  not  performing  ministerial  act 469 

iiot  entitled  to  increased  compensation  though  duties  increased 492 

justification  by 563 

that  another  levied  on  by  virtue  of  process  against  plaintiff 564 

where  called  upon  to  exercise  discretion  not  liable  for  manner  of  doing  so,  687 
but  if  can  accomplish  object  without  destroying  private  property  must,  687 
where  action  by  those  of  one  town  or  county  against  those  of  another 

to  be  tried 792 

where  actions  against,  to  be  tried 792 

cannot  recover  against  one  telling  wrong  person  of  same  name  is  de- 
fendant    888 

otherwise  if  requests  or  requires  to  arrest  or  to  take  property 883 

See  CoMMissioNEKS  OF  Highways;    Exempt  Property;    Justification; 
Malice;  Money  had  and  Received;  Sheriff;  Voter. 

OFFICERS  OF  CORPORATIONS: 

cause  of  action  not  barred  by  laches  less  than  statute  of  limitations 687 

ONUS: 

when  upon  defendant 800 

OPINION : 

as  to  value  of  services 492 

but  not  how  much  worth  "  under  all  the  circumstances  " 492 

ORDINANCES : 

how  pleaded 436 

of  city  defining  nuisance 395 

ORDINARY  AND  CONCISE  LANGUAGE : 

allegations  to  be  in 594,  595 

OWNER: 

when  liable  for  injuries  during  buUding 384 

walls  of  building  fell 385 

liability  to  one  coming  by  license 386 

using  steam  engine  which  burst 388 

to  so  use  his  own  as  not  to  injure  another 45i 

of  cattle  at  pasture  liable  if  they  commit  injury 454 

takes  his  wagon,  but  another's  whiffletrees 454 

See  Trespass. 
OWNER  AND  HOLDER: 

sufficient  allegation  of  ownership  may  be  denied 806 

OWNERSHIP: 

general  allegation  of  good 213,  216 

in  trespass 221,  225 

denial  of  insufficient,  unless  denies  facts  showing  or  alleges  who  is. .  .517-519 

569 

what  is,  what  is  not  good  denial  of 525-528 

denial  of,  in  some  cases,  puts  plaintiff  to  proof 570 

mere  allegation  that  plaintiff  is,  without  denying  facts  showing,   is 

frivolous 687 

denial  of  all  matters  inconsistent  with  answer,  not  good    687 


INDEX.  975 

PAINTING:                                                                                                          PAGE, 
may  restrain  making  of  copies  by  photograph 406 

PARENT  AND  CHILD : 

how  far  parent  liable  for  support  of  child  as  pauper 204 

action  for  enticing  child  away 222,  223 

when  parent  liable  for  child  setting  dog  on  animals 294,  375 

when  married  woman  bound  to  pay  for  nursing  sick  parent 371 

action  by  father  for  enticing  child 397 

rule  of  damages  in  such  case 397 

after  child  leaves  parent's  service,  being  enticed 398 

services  may  be  recovered  in  such  case 398 

when  child  lives  with  mother,  father  cannot  maintain  action. .  .398,  883,  884 

nor  for  removing  child  beyond  habeas  corpus 398,  883,  884 

law  will  not  imply  promise  between,  to  pay  for  services,  etc.,  398,  399,  883,  884 

what  sufficient  to  justify  finding  promise 398,  399,  883,  884 

rule  applies  between  persons  occupying  relation  of 399,  883,  88i 

note  given  for,  by  executor,  invalid 399 

father  may  contract  with  superintendent  of  poor  for  support  of 399 

father  not  liable  for  tort  of  child 37.5,  399 

father  may  sue  for  loss  of  child's  clothing 399 

father  may  emancipate  child,  and  what  proves 399 

father  may  become  liable  to  child  manumitted  for  services 399 

whether  mother  entitled  to  recover  for  services  of  child 399 

mother  of  illegitimate  child  recovering  for 400 

when  no  liability  to  pay  for  work,  board,  etc 398,  399,  488-490,  883,  884 

action  by  father  for  money  received  from  child ;  defense,  child  paid  out 

of  wages 687 

See  Advancement;  Child;  Master  and  Servant. 

PAROL  EVIDENCE: 

lease  signed  by  part  of  firm,  cannot  give  to  show  liability  of  others 415 

admissible  to  contradict  receipt 687 

when  not  admissible  to  vary  terms  of  note 692 

where  contract,  to  show  void  for  stifling  criminal  prosecution 863 

PARTIAL  DEFENSE : 

how  far  available 551,  552,  605,  606 

See  Mitigation. 
PARTICULARS : 

bill  of,  no  part  of  pleading 809 

PARTIES : 

change  by  Code  as  to  who  shall  be 52 

husband  and  wife 53 

idiots,  lunatics,  etc 54 

trustee  and  cestui  que  trust 57 

when  court  to  bring  in  proper 77 

who  necessary  parties 77-79 

when  very  numerous 77-83 

having  common  or  general  intei'est 81-83,  884 

in  equitable  suit  for  dower 32G 

tenant  in  a  partition  case 401 

court  must  order  necessary,  brought  in 746,  8r)9 

though  necessary  to  reverse 8.')9 

but  need  not  those  not  necessary ''^46 

when  have  common  or  general  interest 747,  748 

if  reside  out  of  State  and  fact  stated  need  not  make 748 

facts  excusing  joinder  to  be  pleaded 748,  749 

See  Demurrer ;  Husband  and  Wife;  Married  Woman;  Infants,  Idiots, 
Lunatics,  Etc.  ;  Parties  Defendant  and  Parties  Plaintiff. 

PARTIES  PLAINTIFF: 

rule  at  common  law 64 

in  cases  of  assignment  at  comraou  law 64 

in  cases  of  assignment  in  equity 64 


976  TN-DEX. 

PARTIES  PLAINTIFF  —  Continued.  page. 

in  cases  of  aasigameut  since  the  Code 65 

assignee ()5,    68 

claim  assigned  in  parts 68 

real  party  in  interest G5,    72 

who  is  real  party  in  interest 73-76 

Joinder  of: 

general  rule 76,     77 

when  court  to  cause  to  be  brought  in 77-79,  859 

who  necessary  parties  plaintiff 79,  80,    83 

all  pai'ties  materially  interested 79,  80,    81 

if  in  the  issue 79 

how  to  sue  if  very  numerous 77,  79,  81,  83,  83,  108, 109,  117,  884,  8i)4 

legatees 79,  81,     83 

creditors 79 

one  member  of  voluntary  society 79,  884 

part  of  sliip's  crew 79 

how  defect  of,  to  be  taken  advantage  of 80 

how  misjoinder  of 80 

suit  by  creditor  against  assignee  to  carry  out  assignment 81 

parties  having  common  or  general  interest.. 81-83,  85-87,  97, 108,  109,  141,  881 

member  of  unincorporated  company 83,  884 

all  parties  united  in  interest  must  join 83,  84,  85,  88,  884,  894 

those  having  common  interest,  though  not  joint,  may  join... 84,  85,  108,  109 

884,  894 

as  several  owners  of  mills  for  injunction 84 

if  interest  conflicting  cannot  join 84 

when  interest  does  not  conflict 84 

when  proper  plaintiff  will  not  join  may  be  made  defendant 84,  88,  117 

what  allegations  necessary  in  such  case 84 

who  proper  and  who  necessary 85,  88,     97 

but  those  having  separate  causes  of  action  cannot  join 85,    87 

is  right  of  defendant  to  insist  upon  and  necessary  parties .88,  105 

remedy  in  such  cases 88,    89 

remedy  if  held  necessary  on  demurrer 89 

action  will  not  lie  by  employee  against  part  of  stockholders  of  a  corpo- 
ration       88 

when  suit  will  not  lie  against  joint-stock  association  without  stock- 
holders       97 

party  once  insisting  another  not  necessary  cannot  change  ground 88 

cause  must  be  noticed  for  trial  against  all  parties 89 

when  married  woman  must  sue  alone ." .  .53,  55,  61,    89 

how  married  woman  to  appear 53 

when  service  on  husband  binds  her 53 

when  suit  by  husband,  in  name  of  self  and  wife,  binds  her 53,  55,    61 

how  far  husband  may  control  suit  against  both 54 

execution  against  husband  and  wife 54,    60 

committees  of  lunatics,  executors  and  trustees  of  express  trusts 90 

when  cestui  que  trust  to  be  made  party 93 

assignee  for  creditors 93 

people  trustees  for  those  for  whom  bond  taken 94 

ex^itors  and  administrators  when  proper  and  when  heir 94 

pei-Sns  expressly  authorized  by  statute  to  sue 95 

what  should  appear  in  such  case 96,    97 

all  public  officers  embraced  within  this  clause 95 

how  they  are  to  sue  95 

when  they  may  sue 95,    96 

president  of  a  bank,  when  and  how  to  sue 96 

when  and  how  bank  may  sue 96 

who  authorized  to  sue  by  statute 97 

substitution  of  parties  plaintiff 97 

in  cases  of  assignment  or  transfer  of  interest 98 

legatees  how  to  sue 110 

plaintiff  may  sue  as  executrix  and  as  devisee 110 

one  of  several  legatees  who  gave  power  of  attorney Ill 

so  one  of  several  heii's  for  rent Ill 

one  creditor  may  sue  for  his  share  if  other  paid Ill 

same  person  cannot  be  plaintiff  and  defendant Ill 

one  trustee  cannot  sue  co-trustee  for  conversion ............  Ill 


INDEX.  977 

PARTIES  DEFENDANTS :  page. 

one  member  of  two  firms Ill,  112 

one  executor  suing  co-executor 113 

dormant  partner 118 

plaintili  may  have  part  of  relief  though  others  necessary  for  residue. . . .  884 

stockholders  may  sue  association 884 

where  claim  assigned  in  parts 68 

parties  very  numerous 77,  79,  81,  82,  83,  108,  109,  117 

having  common  or  general  interest 81-83,  108,  109,  141 

member  of  unincorporated  company 82 

proper  plaintiff  who  will  not  join 84,  88,  117 

who  necessary  or  proper 105 

distinction  between 108 

tiecessary  must  be  brought  in 88,  89,  105,  859 

parties  involved  in  the  issue 106,  107 

who  not  'necessary 106 

plaintiff  cannot  demand  several  matters  of  different  defendants,  106,  107,  141 
but  where  general  right  may  be  joined  though  have  separate  rights,  106,  107 

108,  140,  894 

who  i^rajyer  though  not  necessary  parties 107 

when  assignee  may  be  made 107,  114,  115,  116 

when  committee  of,  lunatic . .  107,  127 

creditor  in  partition 107 

mortgagee  in  foreclosure 108 

courts  of  equity  favor  bringing  in  all  proper  parties  and  do  justice  in 

one  suit 108 

need  not  all  claim  in  same  capacity 108 

or  under  same  instrument 108, 140,  141 

as  in  actions  to  set  aside  fraudulent  transfers 108,  140 

and  so  by  receiver 141 

all  interested  in  account  to  be  joined 108 

as  heirs  and  rei:)resentatives,  etc _. 108 

in  action  to  set  aside  conveyance  for  fraud,  representatives  of  impeached 

estate  necessary 108 

in  actions  by  stockholder 109 

by  creditor  against  officers  of  a  corporation 109 

who  legatees  to  make  defendants 109,  110 

in  suit  against  heirs 110 

in  suit  to  have  stock  declared  fraudulent 110 

in  suit  to  reach  ti-ust  funds 110 

executor  and  representative  of  co-executor 110,  118,  119 

wife  necessary  in  partition lU 

but  owner  of  fee  not  in  partition  between  tenants  of  life  estate Ill,  236 

owners  of  different  animals  cannot  be  sued  jointly Ill 

nor  tenants  in  common  of  :i  pew Ill 

same  person  cannot  be  plaintiff  and  defendant Ill- 
one  member  of  two  firms HI?  112 

one  defendant  became  assignee  of  claim H'-^ 

one  executor  suing  another H-^ 

attorney  who  assists  in  fraud 112,  113 

in  cases  of  fraud •  •  •  112 

cannot  join  one,  no  interest  in  result 11™-114 

cannot  bring  defendant  in  to  contest  future  legal  title #.3,  114 

effect  of  improperly  suing  one •  •  •  113 

objection  not  proper  party  must  be  taken  by  demurrer 113,  114 

or  by  answer  if  does  not  appear  by  complaint 11* 

in  action  to  set  aside  assignment,  other  creditors  not  necessary  par- 

ties 114,127 

otherwise  in  action  to  carry  out  assignment oi,  iii 

assignee  of  mortgage  proper  in  suit  to  set  aside  as  usurious 114 

so  necessary  for  injunctitm  to  restrain  collecting  judgment 1^7 

must  state /acts  showing  how  interest  adverse  to  plaintiff's 114,  2o7 

not  enough  to  allege,  claims  some  adverse  interest 114,  115 

one  partner  or  tenant  in  common  suing  another 117 

joint  contractors  n^ust  all  be  sued 11° 

otherwise  if  not  jointly  liable 1"'~ 

or  on  note 1^'J 

or  jointly  and  severally  -liable 1~2 

even  if  bankrupt,  infant,  or  barred  by  limitations Ijo 

when  dormant  partner  must  tie  joined Xlo 

.  123 


978  INDEX. 

PARTIES  DEFENDANTS  — Contmucd;  page. 

one  interested  applying  to  be  made 118 

principal  and  not  agent  to  be  sued 123 

except  in  certain  cases _. . ._ 123 

partners  in  joint-stock  association 123 

assignee  not  usually  liable 124 

parties  to  bills  or  notes,  when  may  be  jointly  sued IIM 

maker  and  guarantor  cannot  be 125,  126,  127 

except  where  guaranty  part  of  same  instrument ._.  125 

remedy  in  such  cases 125,  126 

executor  and  fraudulent  purchaser 128 

■    in  creditors'  bills > 128 

creditors  and  stockholders  of  insolvent  corporation 129 

in  actions  for  wrongs 129 

for  penalty 129 

libel  and  slander 129 

in  actions  of  trespass,  trover,  etc 129 

causes  of  action  must  be  against  all  the  defendants 130,  135 

in  replevin 1-^0 

in  ejectment 130 

in  foreclosure  of  mortgage 131,  135 

in  partitition 132 

must  all  be  interested  in  same  cause  of  action 141 

wife  in  ejectment 327 

landlord  and  tenant  in  ejectment 327 

husband  in  action  for  wife's  torts 53,  346 

grantees  of  purchaser  under  void  foreclosure,  to  redeem 412 

when  heirs  and  representatives  necessary  parties 434 

PARTITION: 

when  creditor  may  be  made  a  defendant 107 

wife  necessary  party HI 

owner  of  fee  not  necessary  in  partition  by  tenants  in  common  of  life 

estate Ill 

defendants  in 132 

will  not  lie,  unless  plaintiff  in  possession 133,  236,  400,  884 

owner  of  specific  lien,  and  one  who  has  paid  money  on  lien  may  be  joined,  141 

requisites  of  complaint 235 

remedy  by  petition  abolished 235 

shares  of  unknown  parties 236 

reversioner  cannot  maintain 400 

cannot  acquire  title  after  suit 400 

rights  of  one  tenant  in  common  making  repairs,  etc 400 

allegations  in  such  case 401 

tenant  in,  under  one  of  owners,  necessary  party 401 

of  chattels  between  tenants  in  common 444 

PARTNER: 

one  suing  another 117 

how  survivor  may  sue  and  be  sued 146 

PARTNERSHIP: 

suit,  where  one  member  of  two  firms Ill,  112 

dormant  partner,  how  far  necessary 118 

action  for  accounting  between 226 

surviving  partner  cannot  assign  to  pay  individual  debts 318 

on  dissolution,  right  to  carry  on  business  in  firm  name 341 

unless  one  buys  other  out 341 

one  partner  suing  other,  to  x-estrain  violation  of  agreement  for 401 

rights  of  sheriff  levying  on  partnership  property,  execution  against  one,  401 

885 

rights  of  other  partner  in  such  case 401 

right  to  dissolve,  when  for  definite  period 401 

remedy  of  one  against  whom  dissolved 402 

two  firms  engaging  in  a  joint  adventure _ 402 

liability  of  firm,  where  one  gives  individual  obligation 402 

where  one  is  seci'et  partner 402 

effect  of  judgment  against  one ■102 

usurious  mortgage  given  to  one,  and  proceeds  applied  to  firm  debt 4(t2 


INDEX.  979 

PARTNERSHIP  —  Continued :  p-^o'^ 

fraud  of  one  as  to  firm  responsibility ••••::•-. ; ^^it 

one  sells  to  other,  who  agrees  to  pay  definite  sum  for  his  interest 40 J 

one  partner  cannot  sue  other  during  its  continuance i(K 

some  suing  others  for  share  of  profits ........_. ... . .  • .  • 4l);v 

one  gives  firm  obligation  to  innocent  purchaser  for  individual  debt 40J 

so  made  during,  but  delivered  after,  dissolution 4(/3 

where  party  taking  notice  of  circumstances 41'-. 

when  rule  that  one  may  bi nd  other  does  not  apply. bN^ 

though  business  done  in  name  of  one,  note  presumed  individual 4  '-i 

one  attorney  employed,  and  took  partner 40.i 

partnership  propei-ty  to  pay  firm  debts 4"^ 

exceptions  to  this  rule • *X'^ 


retiring  partner  compelling  other  to  so  apply  assets 

where  no  covenant  to  do  so *y-^ 

one  partner  becomes  lunatic *^ 

one  person  member  of  different  firms knV  in'i 

remedy  in  such  cases *"•*'  *"* 

one  partner  making  contract  with  firm :■•:••• ,    , 

one  becoming  possessed  of  cause  of  action  against  all i Jt 

remedy  of  one  partner  having  debt  against  firm ^  -J 

he  may  sell,  and  assignee  sue -^^^ 

one  partner  selling  out  to  other  is  surety '^f{^ 

non-joinder  of  dormant  partner,  no  defense 4J» 

note  intentionally  given  to  one  of  several  partuers ;^i 

so  partnership  note,  joint  and  several w| 

defendant  did  not  contract  as  partner.  •..•••.- • :  •  • ; •  •  •  • :  "i :;  '""^ 

though  judgment  against  one  for  goods  sold,  no  bar  against  one  tor  ^^^ 

if  one  partner  commence  suit  for  accounting,  other  cannot 673 

though  asks  extended  relief ^Lf 

partners  agreeing  to  carry  on  illegal  business. :: 

one  sold  out  to  other;  surety  covenanting  would  pay  debts;  new  note 

given,  and  judgment  recovered  against  seller i)Ja 

See  SuRVivoK. 

PARTY : 

when  brought  in  by  amendment  may  plead  statute  of  limitations 68^ 

PARTY  IN  INTEREST : 

,         .  t'^iO 

^li.ois 6;V76,  115 

assignee • ^.,   ^,    1 1 - 

assignee  but  nominal  owner '--  '*'  ^i;.^ 

bank  on  draft  payable  to  cashier ;:y     ;■' 

principal  in  contract  with  agent '~'     IjX 

people  to  restrain  issuing  town  bonds i^ 

holder  of  promissory  note '^ 

official  bond •  ■  •  • • r-.? 

grantor  and  grantee,  land  held  adversely ;^ 

consignor  and  consignee ^. 

warehouseman,  carrier,  etc ^^ 

in  torts r-i 

in  actions  to  recover  real  estate „ 

in  trover,  replevin,  etc -- 

purchaser  not  to  pay  till  collection • '"i 

not  necessary  assignee  should  pay  any  thing -     ^^ 

bailor  and  bailee '  ,-/. 

who  trustee  of  an  express  trust "  .y  .  ^g 

when  holder  of  a  promissory  note  is "> 

defendant  must  answer  that  plaintiff  is  not '* 

how  fact  that  party  is  not  to  be  pleaded •  ;SV^ 

mere  agent  is  not ■••• • 7V7 

demurrer  on  ground  plaintiffs,  or  one  of  them,  not ^j/^ 

so  that  defendant  is  not 

PARTY  WALL:  ^^^ 

covenant  to  pay  half  expenses  of •  •  •  •  ■■■^  g^g 

vii'ht  to  restrain  taking  down r,":,*!- • n '  <;■<)'  87.1 

el'Vct  of  parol  license  to  insert  beams  of  building  lu  wall «>.  J.  »'0 


980  II^DEX. 

PATENT :  page, 

party  must  plead  that  invalid 563 

in  suit  on  note  for,  defense  that  another  issued  after  note  given 669 

»      jurisdiction  of  State  courts  in  case  of 738 

sale  of,  to  be  paid  for,  if  works 293 

PATENT  MEDICINE: 

agreement  for  sale  of 690 

PAUPER: 

when  may  recover  for  work 489 

PAWNOR: 

when  may  maintain  action 301 

complaitit  in  such  cases 302 

damages  in  suit  by 302 

PAYMENT : 

when  party  cannot  recover  damages  without 317,  473 

in  counterfeit  money 335 

by  mistake  in  note  of  insolvent 377 

usurious  mortgage  given  to  one  partner  and  proceeds  applied  to  firm 

debt 402 

no  presumption  of,  if  owner  of  equity  of  redemption  insolvent 413 

if  plaintiff  admit,  cannot  deny  on  the  trial 505 

admits  payment  of  amount  of  demand  less  amount  claimed 505,  529 

must  be  pleaded 564 

otherwise  if  plaintiff  allege 564 

presumption  of,  to  be  raised  by  plea  of  payment 680 

note  of  third  person  is  not,  unless  agreed  to  be 191,  192,  687 

071US  of,  showing  agreement  is  on  the  debtor 687 

and  may  contradict  language  of  a  receipt 687 

acceptance,  however,  suspends  remedy  till  note  matures 688 

if  forged,  does  not  extinguish  original  claim 689 

if  note  taken  when  debt  created,  presumption  was  a  payment 688 

and  omis  on  creditor 688 

unless  sale  for  cash,  and  check  taken  as  means  of  drawing  money 688 

though  clieck  may,  by  agreement,  be  taken  in  payment 688 

circumstances  adtuissible  to  show  whether  payment  or  not 688 

so  subsequent  conduct  of  parties 688 

seller  requested  buyer  to  procure  draft  on  New  York 688 

one  of  several  makers  gave  new  note,  no  defense  to  original 688 

mortgagee  rendered  services  under  agreement  to  apply  on  mortgage  . . .  688 

if  note  payable  at  bank  deposit  of  amount  is  not 688 

remedy  of  maker  in  such  case 688 

credit  "given  to  agent  and  principal  paid  him 688 

agent  of  holder  i)orrowed  money  and  pledged  bond  and  paid  it  is  not  ..  689 

agent  to  receive  interest  received  part  of  principal 689 

what  not  ratiflcation  of  such  act 689 

check  taken  to  be  credited  if  account  of  drawer  good 690 

charging  on  books  may  operate  as 690 

such  acts  same  as  if  money  actually  changed  hands 690 

payment  after  summons  issued 690 

so  after  service  plaintiff  must  refuse  to  receive  unless  costs  paid 690 

payment  after  suit  to  plaintiff's  clei'k 690 

to  attorney  or  prochieii,  ami 427,  870 

See  Accord  and   Satisfaction;    Limitations,  Statute  of;    Voluntabt 
Payment. 

PAYMENT  OF  MONEY  ONLY: 

what  are  instruments  for  the  payment  of 181 

PEACE,  BILL  OF.  See  Quia  Timet;  Cloud  upon  Title. 

PENALTY : 

how  sued  for .192,  854 

allegations  in  action  for 208 

requisites  of  complaint  for  obstructing  highway 404 


INDEX. 


981 


PENALTY  —  Continued :  **age. 

action  qui  torn V  * ;  ".•  *  V '  1 rnn 

defendant  not  bound  to  answer  if  subjects  to wu 

■what  is  so  statute  of  limitations  runs  against o»- 

where  action  for,  to  be  tried '  ^•;' 

when  full  penalty  of  bond  to  be  recovered o&* 

Sec  Verification. 

PEOPLE : 

when  cannot  restrain  issuing  bonds  by  town 443 

when  may  restrain  city  from  making  illegal  contract 44ii 

PERFORMANCE: 

when  contract  performed  party  may  sue  in  assumpsit 171.  192 

how  alleged *     {^ 

how  refusal  alleged •  •  •  •     '' 

on  failure,  recovery  of  money  paid ■^■^O'  °;]o 

requisites  of,  where  time  not  fixed '^;^.^ 

allegations  when  waived  or  unnecessary ^j-j 

party  seeking  to  recover  must  allege,  and  how •  • 4"* 

agreement  to  deliver  stock,  may  deliver  "  watered     subsequently 4U4 

sale  of  goods  "  to  arrive ;"  less  than  amount  agreed  upon  came 404 

must  perform,  though  duty  increased j"^ 

of  cargo  "about  9,000  bushels" Jn' 

if  accepts  less  is  full  performance • :•••;: j* "  V * " "^A 

land  "to  be  occupied  for  a  Jewish  synagogue"  must  deliver  deed  with 

such  condition  and  not  to  covenant  running  with  land wo 

agreement  to  lease,  repairs  to  be  completed  by  14th  June 4Uo 

when  party  refuses  to  perform  need  not  aver  nor  show  readiness 40^ 

otherwise  must ^  V.*  ^pp 

if  excused,  facts  must  be  shown • • *"•>  ^"" 

but  if  performance  alleged,  court  may  allow  amendment 4Uo,  ouo 

nn  sale  for  cash,  tender  of  seller's  note  not  good *"•? 


406 


if  contract  assigned,  tender  to  be  to  assignee •• 

if  one  act  to  precede  other,  failure  of  first  waiver  of  second 4"^ 

as  to  prepare  a  building  for  mason  work *"^ 

to  furnish  plans • ,•  •  •  •  •, •.•  •  •  •  •  VV^^lf^V 

if  agrees  to  do  within  certain  time    under  penalty,   liable  thereior, 

though  impossible •  • •  •  • .(,(. 

if  party  to  do  act  first  may  recover  damages  from  delay •  •  •  •  *w 

seUer  cannot  recover  part ;  must  fully  perform -■•■A '  aqr 

if  contract  for  coach  from  A,  not  compelled  to  take  one  from  C *»» 

when  excused  by  sickness  or  inability 

when  defendant  cannot  perform,  plaintiff  must  show  facts oo» 

and  must  show  excuse  for  not  offering  to  perform ^ 

may  be  pleaded  in  answer  as  in  complaint ^^ 

what  defendant  setting  up  obliged  to  prove ^^^ 

when  covenants  independent  and  need  not  allege V :;  •^" * " ' '"'l 

when  contractor  bound  to  increase  number  ot  laborers,  and  if  does  not  ^^^ 

contract  may  be  rescinded .■••^' :;"-,"." \ rqi 

may  set  up  work  done  under  contract  plaintiff  failed  to  keep oJi 

and  must  perform  entire  contract  .....   •  •  •  •  •  •••••:••••• '  '"'i  ' 

but  under  contract  to  make  three  or   four  models,  workman  may  ^^^^ 

elect .•  ■  j fjnt 

agreement  that  on  failure  to  perform,  party  may  rescind •  •  o^* 

tender  late  last  day •  • VqV  o,;r, 

party  in  default  cannot  recover  what  has  paid ■ ''°^^  ^ 

when  vendee  need  not  demand 

See  Accord  and  Satisfaction;  Impossibilitt ;  Reasonable  Time;  Sale; 
Tender;  Work  and  Labor. 

PERJURY:  .  ^3^, 

remedy  against  person  procuring  witness  to  commit •  •  •  ^g^ 

liability  of  witness  for 


PEW: 


remedy  of  owner  of. 


452 


982  INDEX. 

PHYSICIAN:  page. 

may  restrain  patient  laboring  under  delirium  tremens 296 

liability  of,  for  report  that  one  insane 696 

PILOT: 

liability  of  ownex's  of  vessel  for  negligence  by 3'i4 

PLACE: 

how  to  be  alleged 232 

PLACE  OF  TRIAL : 

at  commou-law  venue,  local  or  transitory 791 

plaintiif  not  at  liberty  to  choose  any  county  in  transitory  action,  unless 

all  the  parties  are  non-resident     791 

what  actions  must  be  tried  in  county  where  subject  situated 791,  792 

if  proper  county  not  named,  remedy  by  motion  to  change 792 

action  to  restrain  injury  to  rent,  estate  local 792 

to  have  conveyance  declared  invalid,  or  to  be  a  mortgage 792 

action  by  officers  of  one  town  or  county  against  those  in  another  county,  792 

action  against  national  bank 792 

what  actions  to  be  tried  in  county  where  arose 792 

for  penalty 792 

against  public  officer 792 

where  other  actions  to  be  tried 792 

where  demurrer  to  be  argued 794 

where  motion  for  judgment  on  ground,  pleading  frivolous 795 

See  Complaint. 
PLAINTIFF.    See  Paeties  Plaintiff. 

PLAY : 

suit  lies  to  restrain  acting 406 

by  an  assignee  thereof 886 

acting  is  not  a  publication 406 

PLEA: 

difference  between,  and  answer 553 

See  Answer. 
PLEADING : 

signification  at  common  law 7,  153,  162 

in  equity 7,  153,  162 

origin  and  history  of,  at  law  and  in  equity 7,  153,  162 

how  anciently  conducted 8 

modification  of 9 

every  cause  of  action  formerly  had  its  own  appropriate  form 9 

origin  thereof 9 

originally  no  distinction  between  law  and  equity 9,     12 

how  many  difi'erent  writs 10 

origin  of  equity  pleadings  and  jurisdiction 10 

origin  of  distinction  between  law  and  equity 11,    14 

original,  simplicity  of 12 

final,  complexity  of 14 

system  of,  before  the  Code 14 

in  an  action  at  law 15 

names  and  order  of  pleadings  in 15 

in  equity 15,  16,    29 

names  and  order  of  pleadings 1-6 

names  and  liinds  of  bills  in  equity 17,    18 

parts  of  a  bill  in  equity 17,    19 

change  in,  by  Code 18,  28,    30 

rules  to  determine  sufficiency  of 33 

to  be  subscribed  by  party  or  attorney 808 

not  sufficient  that  summons  is  subscribed  by  party  unless  he  is  an  attor- 
ney   808 

remedy  if  not  subscribed 808 

what  is  good  subscription 808 

to  be  folioed  and  legibly  written 808 


1X.DEX.  983 

PJjEABIKG  — Continued'  page. 

if  not  clerk  not  to  file 809 

remedy  if  not 809 

remedy  if  not  properly  written 809 

party  objecting  must  be  technically  correct 809 

causes  of  action  to  be  separately  stated  and  numbered 809 

remedy  if  not 809 

items  of  account  need  not  be  set  out 809 

remedy  if  not 809 

biU  of  particulars  no  part  of  pleading,  and  not  to  be  answered 809 

cannot  answer  plaintiff  indebted  certain  sum  as  per  bill  of  particulars..  810 

though  party  may  use  form  allowed  by  Code  not  bound  to 810 

confession  and  avoidance 811,  812 

must  answer  whole  of  what  is  adversely  alleged 812 

rule  does  not  apply  to  partial  defense 812 

See  Construction. 
PLEADING  OVER: 

when  defects  aided  by 847 

but  not  a  defect  in  substance 848 

PLEDGE : 

suit  to  redeem 407 

remedy  by  tender  of  amount 407 

though  pledgee  have  sold  the  property  pledged 886 

right  of  pledgee  to  foreclose  right  to  redeem 407 

tender  must  be  on  day  due 457 

else  remedy  by  action  to  redeem 457 

pledgee  returning  stock  held  as  collateral  does  not  warrant 471 

money  paid  on  account  of  stock  pledged,  a  counter-claim C32 

lien  where  pledgee  has  notice  of  facts  showing  want  of  title 679 

on  pledge  of  notes  maker  may  set  up  any  equity  against  pledgor  at 

pledge 691 

pledgee  liable  for  conversion,  need  not  tender  amount  due 703 

pledgee  bound  to  protect  rights  of  one  of  which  he  has  notice 886 

and  can  only  sell  in  manner  authorized  by  law 886 

damages  in  actions  by  pledgee 300 

when  must  notify  of  time  and  place  of  sale,  and  demand  payment 394 

PLENE  ADMINISTRAVIT: 

when  plea  of,  invalid 664 

POISON.    See  Druggist. 

POSSESSION.    See  Trespass. 

POSTMASTER: 

if  letter  left  with  deputy  to  register  liable  if  sent  without,  though  can- 
not register  to  place  directed 886 

PRAYER  FOR  RELIEF : 

injunction  to  be  prayed  for 353 

in  action  to  set  aside  fraudulent  transaction  should  pray  for  repairs. ...  407 

need  not  be  answered 599 

nor  denied 797 

See  Relief. 

PRESUMPTIONS : 

not  necessary  to  plead 37,  255,  269 

what  made  in  favor  of  pleading ^Ji 

in  cases  on  promissoiy  notes 256 

may  be  traversed 257 

that  every  man  solvent 389 

if  horse  running  at  large  that  owner  negligent 390 

none  of  payment  if  owner  of  redemption  insolvent 413 

when  none  of  continuance  of  want  of  knowledge  of  facts 467 

part  of  packages  opened ;  juiy  may  find  all  same 472 

condition  long  time  after  shipping,  none  same  at  shipping 472 

law  will,  in  first  instance,  imply  request  to  perform  work 491 

on  demurrer  that  agreement  required  to  be,  is  in  writing ■674 


984  INDEX. 

PRESUMPT  rONS  —  Continued:  paqk. 

as  to  note  of  third  person  being  accepted  as  payment 687,  688 

that  debt  due 755 

of  negligence  from  injury 904 

PRICE : 

how  far  inadequacy  evidence  of  fraud 360,  866 

PRINCIPAL  AND  AGENT: 

when  principal  may  sue  on  contract  with  agent 72,  74,  91,    94 

agent,  when  may  sue  on  contract  with  himself 91 

which  to  be  defendant 123 

when  principal  liable  for  agent's  fraud  if  retains  proceeds 372 

principal  may  recover  money  mistakenly  paid  by  agent 382 

agent  who  sells  note  for  less  than  face  liable  for  amount  thereof 382 

credit  given  to  agent  and  principal  paid  him 688 

agent  of  holder  borrowed  money,  pledged  bond  and  paid  it  to  holder. . .  689 

agent  to  receive  interest,  received  part  of  principal 689 

what  not  ratification  of  such  act  by  principal 689 

when  tender  to,  good 702 

See  Agent. 

PRINCIPAL  AND  INCIDENT : 

assignment  of  mortgage  without  bond  usually  invalid 232,  233 

See  Assignment;  Consideration. 
PRIVILEGE.    Sec  Akkbst,  Exemption  feom. 

PRIVY : 

allegations  in  action  for  injury  from 246 

action  lies  for  injury  from 246 

when  tenant  may  leave  on  account  of  overflow  of 365 

water  soaked  through  waUs 386 

otherwise  where  used  for  ordinary  purpose 386 

PROFERT : 

need  not  be  made  under  the  Code 816 

PROFITS: 

when  recoverable 319 

See  SPECiAii  Damages. 
PROMISE : 

how  alleged 170,  197-204 

to  pay  when  convenient 170 

must  be  alleged 183 

and  how 184,  186,  197-204 

in  case  of  contract  by  agent 184 

when  to  count  on  new,  and  when  on  original  cause  of  action 206,  207 

by  debtor  to  pay  debt  to  third  person  valid 407,  888 

when  implied  to  pay  for  work 488 

to  pay  third  person  no  defense  unless  has  paid 493 

when  may  be  reached  by  creditor 888 

PROMISSORY  NOTE : 

parties  to,  may  be  jointly  sued 124 

how  far  applies  to  one  non-negotiable 124 

does  not  apply  to  guarantor 125 

allegations  in  actions  upon 171,  172 

as  against  indorser 172,  173,  180 

to  show  plaintiff  is  party  in  interest 172,  173 

how  declared  upon  as  written  instrument 174.  179 

presumptions  in  cases  of 256 

averment  and  proof  when  payable  at  particular  place 303 

demand  unnecessary  if  payable  at  particular  place 321 

maker  may  plead  i-eadiness  there  and  effect  of 321 

practice  in  such  cases 321 

demand  necessary  if  payable  on  demand,  at  sight 321 


INDEX. 


985 


PROMISSORY  NOTE  —  Continued :  ^^°^ 

vn-itinff  "  payment  stopped  "on naa'  n^ 

payable  at  bank,  aud  deposit  of  amount  there bS»,  iW 

ou  pledge  of  maker  may  set  up  equity  against  pledgor  at  pledge b»l 

how  far  memorandum  on  back  part  of «yi 

holder  agreed  to  call  in  and  collect  within  three  years 091 

oral  agreement  to  collect  of  securities  deposited  cannot  be  shown (JM 

nor  to  renew  note  at  maturity • "^J^ 

if  holder  agrees  to  extend  time  of  payment,  must  be  set  up  as  dejense  . .  bJ^ 

action  does  not  lie  for  breach  of  such  agreement 693 

if  payable  by  installments,  default  in  one  dishonors bJ^ 

if  payable  to  bearer.  A,  not  negotiable bJ^ 

whether  dishonored  on  last  day  of  grace ^J-' 

See  Bona  Fide;  Endorser;  Lost  Bill  of  Exchange  ok  Note. 

PROTEST : 

allegations  of,  and  how  shown 1^3 

damages  in  action  for  failure  to ^^ 

of  non-negotiable  note  not  necessary ^-^ 


failing  to  protest  draft. 


389 


if  paper  accepted,  payable  at  particular  place ^0' 

allegations  in  such  case *^7 

under  allegation  of,  cannot  show  waiyer obb 

when  could  not  protest •  •  •  •  ^J?}? 

denial  of,  not  sufficient  to  compel  calling  of  notary oiJ,  bM 

what  should  be  done  to  compel  plaintiff  to  call  him 519,  bM 

denial  of  presentment  and  non-payment 5~;* 

when  foreign,  may  be  protested  by  notary's  clerk osi 

act  of  18.57  only  abolishes  days  of  grace  where  are  on  face  payable  at  par- 


ticular time 


887 


notary  not  liable,  if  follows  instructions 887 

PROVISIONS : 

warranty  on  sale  of ^^•'•»  *' "^ 


PROVOCATION: 

what  may  be  shown  in  mitigation 


697 


PUBLICATION : 

of  plaintiff's  name  on  register  of  protested  paper  not  restrained 407 

of  any  li  bel j^' 

otherwise,  of  letters *"' 

PUIS  DARRIEN  CONTINUANCE: 

agreement  to  publish  mutual  apologies  may  be  so  pleaded 678 

is  error,  to  refuse  proper  plea  of o3^»  887 

See  Supplemental  Answer. 

PURCHASER: 

action  against,  and  broker  for  a  fraudulent  sale 143 

QUANTUM  MERUIT: 

count  in 1^-20* 

when  damages  according  to  contract  rate,  aud  not  on 490 

when  may  recover  for  work  under,  if  full  perfoi-mauce • .  •  •  4J- 

if  owner  delays,  may  recover  increased  expense  on 49iJ,  4J4 

QUANTUM  VALEBANT: 

count  in 19-204 

QUIA  TIMET: 

surrender  of  forged  biU ^^ 

surrender  of  deed  will  not  revest  title *J^o 

bill  quia  timet  will  lie  in  such  case *J|» 

wiU  not  lie  to  set  aside  void  proceedings *"8 

124 


986  iis'DEX. 

QUIA  TIMET— Continued:  page.. 

what  necessary  to  maintain  bill  of  peace 408 

action  lies  to  compel  surrender  of  usurious  security 408 

and  bill  not  to  be  dismissed,  because  does  not  offer  to  pay 408 

surrender  of  void  instrument  compelled 408 

See  Cancellation;  Cloud  upon  Title. 

QUO  WARRANTO: 

if  parties  do  not  object,  may  be  tried  as. equitable  suit 408 


RAILROAD : 

if  servant  takes  master's  baggage  company  not  liable 408 

but  servant  may  recover  for  own  though  master  pays 408 

if  master  has  tickets  for  both  and  cars  separated 409 

may  be  restrained  from  laying  track  in  street 409 

so  ejectment  will  lie  in  such  case 327,  409 

liability  for  baggage  of  passenger  ejected 409 

left  on  seat  in  car  by  passenger 409 

unless  came  to  possession  of  agents  of  the  company 409 

town  issuing  bonds  to  aid 443 

liability  for  goods  not  arriving  on  schedule  time 470,  902 

husband  may  recover  for  wife's  jewelry 887 

if  passenger  demands  baggage  before  sent  must  be  returned 887 

passenger  must  demand  his  baggage  on  arrival  of  train 888 

but  railroad  bound  to  have  agent  on  hand  to  deliver 888 

running  over  hose  at  fire 384 

liability  of  for  interfering  with  water-course 477,  904 

not  liable  for  strange  dog  biting  passenger 295 

See  Bailor  and  Bailee;  Cabriek;  Damages;  Horse  Railroad;   Impos- 
siBiLixr;  Negligence. 

RATIFICAi'ION: 

of  a  demand,  when  cannot  be 323 

See  Disaffirmance;  Principal  and  Agent. 

REAL  PARTY  IN  INTEREST : 

how  fact  that  plaintiff  is  not  pleaded 517-519,  525-628,  569 

See  Party  in  Interest. 

REAL  PROPERTY: 

actions  relating  to 230 

claims  to,  how  determined 237 

what  defense  may  be  set  up 238 

may  proceed  by  notice  under  statute 238 

REASONABLE : 

what  is  a  reasonable  manner  to  depend  on  all  the  circumstances 696 

REASONABLE  TIME: 

how  alleged  and  meaiiing  of 170,  193 

if  time  not  fixed,  law  fixes  at  reasonable  time 409,  888 

circumstances  not  known  cannot  be  considered 409 

allegations  as  to  performance  or  offer  within 409 

no  time  fixed  for  delivery  of  goods 410 

when  time  of  performance  extended  but  time  not  specified 410 

in  such  case  must  be  demand  and  tender 410 

to  deliver  as  "  required  "  vendee  delayed  long  time 410 

how  vendor  to  get  rid  of  liability  in  such  case 410 

has,  when  act  to  be  done  on  demand 410 

so  "  immediately  on  demand  " 410 

or  "at  once  and  without  delay"  410 

agreement  to  pay  "  when  convenient  " 410 

when  not  to  compel  payment 410 

to  pay  when,  in  my  opinion,  circumstances  will  allow 888 

how  long  has  to  remove  timber 410 


INDEX.  9^'^ 

REASONABLE  TIME  -  Continued :  ^^^ 

if  does  not,  liable  for  extra  expense '  ^gg 

so  where  to  furnish  plans  or  do  other  acts. '. '. '  563 

when  general  extension ._.••• •  •  • gg3 

when  note  to  pay  when  convenient,  payable 

RECEIPT:                                                                                                            ...  687 
parol  evidence  to  contradict 

^^  wtll  hfsolvent  corporation  may  sue  creditors  and  stockholders. . . .  .129,  141 

of  rents,  must  demand 33g 

may  set  aside  fraudulent  transfer  ••••••••••• .364 

in  ejectment  on  ground  of  forfeiture  of  lease ^o* 

abatement  of  suit  does  not  divest  rights  ot 

of  nmirious  borrower,  may  recover  back  excess. 

of  Svent  company,  may  recover  back  capital  distributed 411 

and  may  restrain  suits  against  stockholders '.*.'.  411 

what  legacies  will  not  pass  to ^-j^-j^ 

what  funds  bequeathed  he  takes r  •  x:; " '.".".  411 

takes  earned  but  not  unearned  fees  of  oflicer ^^^ 

rarely  appointed  of  a  religious  corporation ^^ 

when  cannot  recover  of  chattel  mortgagee 

RECITAL :                                                           ^  .  ^  r.              f  wq 

defendant  not  obliged  to  answer  matter  stated  by  way  of ojy 

RECOUPMENT.    See  Counter-claim. 

REDEMPTION :  «  ^^^ 

of  pledge .':■■••, !!!!!!!!!!!".'  4or 

right  to  foreclose  right  ot • .-  •  •;••„•••,•• 411 

re7nedy  of  mortgagor,  chattel  mortgage  in  default *JJ 

cannot  sue  for  fraudulently  selling ^^2 

how  right  of  redemption  extinguished .yy 

where  mortgagee  claims  too  much  may  redeem 

if  mortgago?  dead,  heirs  and  representatives  to  be  parties 41. 

should  offer  to  pay  what  is  due  _. ;••••%• 412 

right  of  grantee  of  part  of  premises  mortgaged ^^^ 

second  mortgagee  may  redeem '. !  413 

so  may  judgment  creditor 412 

but  not  mere  surety • :  ■  •  1  • ;," V 412 

mortgagee  in  possession  entitled  to  full  payment *J- 

one  of  several  debtors  where  debt  of  f o™e_barred |j- 

mortgagee,  when  entitled  to  payment  for  improvements  4i^ 

purchaser  under  void  foreclosure  is  assignee  of  mortgage •  ■  41^ 

so  under  irregular  sale • : 412 

closure  to  which  she  is  not  party '.*.'.'.','.'.',".  413 

remedy  to  redeem •  • • ' ' 4.13 

second  mortgagee  not  party,  not  bound  to  Pa7  costs |^^ 

if  owiipv  of  pfiuitv  insolvent  no  presumption  of  payment .-  •  •  •  '^^'^ 

pur^haTer  uXr^srcond  mortg.S^^  cannot  maintain  ejectment  against  ^^ 

first  mortgagee  in  possession _  ^  4^3 

his  remedy  to  redeem 413 

time  usually  allowed  to  redeem •.•••• *■•,■■  o«^  * A-^nVfivVnoe 4.5] 

right  of  one  redeeming  for  injury  between  sale  and  conveyance *o^ 

reinedv  of  one  who  redeems  for  waste. ko-. 

flefeiul'int  may  ask  to  redeem  in  an  action  for  conversion. . . ._. 5»7 

when  plaintlKtitled  to,  in  suit  to  restrain  on  ground  nothing  due  . . .  637 
See  Pledge;  Substitution. 


988  IXDEX. 

REDUNDANT.    See  Sham,  etc.  paq«. 

REDUNDANT  MATTER.    See  Irrelevant  anb  Redundant  Matter. 

xvEEEREfi : 

power  of,  to  allow  amendment 830 

REFERENCE : 

trial  by 788-791 

REFORMATION  OF  CONTRACTS : 

aud  enforcement  thereof  in  one  action 276,  277,  631 

mistiike  good  ground  for 413 

but  must  be  mistake  of  law 413 

mutual  mistake  as  to  construe! ion  not  sufficient 413 

otherwise  where  one  party  only  knows  law  and  misleads  other 413 

where  law  well  settled,  courts  apt  to  find  fraud 413 

otherwise  where  in  doubt 413 

mistake  must  be  mutual 413 

yet  if  one  party  desires  to  rescind  minds  do  not  meet 413 

must  appear  clearly  what  contract  was 413 

court  will  not  make  contract  for  parties 413 

but  if  vague,  court  will  look  at  surrounding  circumstances 414 

contract  to  build  a  house,  size,  etc.,  not  specified 414,  889 

court  will  reform  on  bill  by  assignee 414 

conveyance  gave  distance,  but  did  not  include  a  building 414 

agreement  broad  enough  to  include  a  fund  not  intended 414 

if  deed  conforms  to  agreement  must  ask  to  reform  both 414 

cannot  be  had  in  collateral  action  by  persons  not  parties  to  contract 693 

when  laches  no  bar  to 889 

See  Mistake. 

RELATION : 

dijctrine  of  title  by 451 

conveyance  does  noj^make  one  trespasser  who  cut  after  agreement  for,  704 

RELATIVES : 

when  no  liability  between 398,  399,  488-490 

RELEASE : 

action  once  accrued,  only  discharged  by  satisfaction 4.58 

parol  without  consideration,  void 663 

one  of  two  joint  creditors,  took  part  in  payment  of  half 663 

RELIEF : 

any  proper  .iudgment  upon  the  facts  pleaded  to  be  given 190,  270,  830,  886 

what  granted  where  no  answer 228 

what  granted  where  answer 228 

how  complaint  to  state  demand  for 272 

money 272,  273 

to  recover  real  or  personal  property 272,  273 

in  equity 272,  273 

general  relief 273 

what  relief  formerly  granted  under  general  prayer 273 

prayer  for  general  relief  under  Code .' 273 

if  answer,  party  may  have  any  relief  consistent  with  case  made,  273,  276,  277 

otherwise,  if  no  answer 274 

demurrer  is  not  an  answer 274 

whether  demanded  or  not 273 

at  law  or  in  equity 26,  31,  32, 135, 138. 140,  141,  273,  274,  276 

when  complaint  unites  legal  and  equitable  causes 274 

answer  may  furnish  grounds  for 274 

cannot  recover  more  damages  than  asked 274 

except  upon  condition  of  granting  new  trial 274 

how  amount  claimed  to  be  stated 274 

demanding  more  than  facts  Justify,  not  ground  of  demurrer 275 

court  may  allow  amendment .* 275 


INDEX.  989 

RELIEF  —  Coutinued :  ^^t^c 

alternative  relief •  •  •  ■  ■  •  •  *  :,l,V  J„ 

but  not  inconsistent -^^^  ■^*-^'  "■'"'  '^' 

remedy  if  inconsistent ^1° 

to  reform  agreement  and  enforce  it ^i,^ 

remedy  if  no  relief  asked,  or  if  prayer  defective ^;f,o 

no  issue  upon ^i-q 

remedy  if  improper,  asked ~*^ 

prayer  for,  not  stricken  out  nor  demurrable <  oo 

See  Prayer  for  Relief. 
RELIGIOUS  MEETING : 

one  disturbing,  may  be  ejected ^"5 

RELIGIOUS.  SOCIETY : 

trustees  de  facto  cannot  recover  of  those  in  possession 414 

must  sue  in  corporate  name  of  society *i* 

action  will  not  lie  to  eject  minister j}-* 

one  trustee  cannot  be  sued  by  co-trustee Jj^ 

nor  can  a  majority  exclude  a  co-trustee *|^ 

court  will  rarely  appoint  receiver  of *J-» 

REMOTE :  ^ 

when  injury  too ^1^'  ^"^^ 


861 
169 


RENT: 

assis^nee  of  lease,  assigned  it  reserving  rent. 

when  landlord  may  sue  for  use  and  occupation i J-,  f^ 

when  assignee  liable  personally  for "f^;^ 

receiver  or  grantee  must  demand ^~^ 

one  of  two  joint  lessors  may  demand ^-^ 

of  one  of  several  joint  lessees ^"j* 

executor  liable  personally  for •  •  •  •  • ^fr 

lease  executed  by  two  of  firm  cannot  show  others  liable *ij> 

if  to  be  charged  as  assignee  must  be  so  alleged *|-^' 

effect  of  demise  of  premises *|'3 

what  authority  agent  executing  must  have * lo 

tenant  holding  over  by  consent *|'^ 

if  falls  due  after  lessor's  death  goes  to  heir ._ •  •  •  •  •  • ;  •  •  ^'■'^ 

though  must  be  demanded  before  sunset  for  forfeiture,  not  due  till  mid- 

therefore,"  if 'lessor  dies  after  sunset  but  before  midnight,  goes  to  heir. .  416 

otherwise  if  lessor  be  tenant  for  life  when  goes  to  executor 4ib 

•  if  lessor  assign  lease  after  due  may  recover  back  rent 4Jb 

undtrtenant  not  liable  for *j-^ 

but  assignee  is .• .,,' 

law  presumes  one  in  possession  as  assignee *|" 

how  lessor  must  complain  against  assignee *|» 

assignee  liable  for  aU  rent  fulls  due  after  assignment ^|« 

yet  not  liable  for  rent  new  story  put  up  under  new  agreement 4i^ 

assignee  of  lessor  may  recover  what  falls  due  after  assignment ^i^ 

if  assignor  of  lease  reserve  single  day  is  undertenant  only 4ib 

when  assignee  assigns,  ceases  to  be  liable • 4i.b 

use  and  occupation  lies  if  defendant  actually  occupied  as  tenant 4i^ 

so  if  had  the  power  to  occupy :A 

when  one  tenant  in  common  liable  to  other  for *** 

when  purchaser  in  default  liable  for Vr^ 

when  seller  liable  for • :;  V-'  ;,'-i*; tal 

assio-nee  of  lease  must  plead  assignment  to  avoid  liability »i'- 

in  action  to  recover,  when  tenant  may  recover  expense  of  repairs o-i- 

in  action  to  rescind  contract  for  lease  landlord  may  counter-claim  rent,  te^ 

tenant  may  recoup  damages  from  soot  from  landlord  s  engme b,^'i 

when  plea  that  reversion  did  not  belong  to  lessor,  good bJ;> 

tenant  accidentally  kept  key  a  few  days • ojo 

when  agreement  and  taking  of  possession  by  landlord  operates  as  sui- 

render •  •  • ; f,[y, 

whether  lessee  can  set  off  damages  from  percolation o.,4 

damages  in  such  case  and  how  shown "«'*'  ^-^^ 

See  Landlord  and  Tenant;  Lease. 


990  INDEX. 

RENTS  AND  PROFITS:  vaq-o. 

recovery  of , 231,  232 

REPETITION : 

facts  to  be  alleged  without 266,  594,  595 

REPLEADER: 

what  was,  under  former  practice 785 

in  what  cases  ordered 785 

how  far  may  be  ordered  since  Code 786-788 

REPLEVIN : 

effect  of  death  of  plaintiff  or  defendant 69 

when  lies  though  defendant  parted  with  properly 130 

who  may  maintain 75 

cannot  be  joined  with  trover 143 

requisites  of  complaint 215,  216 

when  lies 215 

distinction  between,  in  the  detinet  and  in  the  cepit 215 

must  allege  property  in  the  goods  and  not  right  of  possession 216 

lies  though  immediate  delivery  not  obtained 216 

when  one  tenant  in  common  cannot  maintain  against  another 443 

will  not  lie  by  one  redeeming  for  timber  cut  after  sale  but  before  con- 
veyance   451 

after  suit  terminated  trover  lies  for  the  property 4(50 

undertaking  in,  to  plaintiff  instead  of  sheriff  good 4G2 

when  release  by  parties  does  not  bar  sheriff 's  action 659 

in  action  undertaking  that  animal  died  without  fault 694 

if  suit  brought  in  good  faith 694 

so  for  slave  that  he  was  emancipated 694 

return  before  suit  cannot  recover  damages  as  for  wrongful  taking  and 
detention 842 

See  Claim  and  Delivery. 

REPLY: 

provisions  of  Code  upon  the  subject 708-710 

cannot  be  interposed  where  not  requix'ed 710 

and  if  not  will  be  stricken  out 710-713,  763 

if  improperly  interposed,  remedy  by  motion 713 

when  court  may  require,  though  no  counter-claim 713 

how  denial  to  be  made 713,  714,  715 

on  failure,  defendant  may  move  for  judgment 714 

unless  other  facts,  decision  of  case  undisposed  of 714 

if  interposed  to  demurrer  and  answer,  amendment  leaving  out  demur- 
rer not  necessary  to  reply , 714 

nor  is  merely  verifying 714 

supplemental  answer  may  require 715 

how  new  matter  to  be  alleged 715,  716,  733,  724 

must  reply  statute  of  limitations 715 

what  may  and  what  must  be  replied  to 716 

may  reply  counter-claim  to  counter-claim 716-718,  763 

striking  out  irrelevant  and  redundant  matter,  etc 718 

reply  must  be  consistent  with  complaint 719 

what  a  departure  and  what  not 719-722 

what  consistent  and  what  not 719-722 

how  objection  to  be  taken  that  insufficient 721,  722 

may  be  to  part  of  answer  if  two  or  more  counter-claims 722,  723 

when  verification  required 724 

when  privileged 724 

when  sliam,  or  irrelevant  stricken  out 725-727 

cannot  have  judgment  if  material  issue  remains 725-727 

supplemental  reply 727,  728 

when  may  interpose  facts  not  existing  at  time  of  answer 727,  728 

See  Answer;  Denial. 

BEQUEST: 

how  far  necessary  to  allege,  and  when 198-204 

how  will  in  first  instance  be  presumed  to  perform  work 491 

authorities  as  to  (note  4) 417 

See  Demand;  Notice. 


INDEX.  991 

RESCISSION":  paoe. 

when  necessary  to  tender  back  what  has  received 191 

when  not 889 

owner  of  horse  need  not  return  hire  before  suing  for  injury 303 

not  necessary  in  action  for  damages  on  account  of  fraud 339 

by  tenant  on  discovery  premises  fraudulently  rented 365 

tender  back  when  purchase  fraudulent 459 

on  ground  of  fraud  must  be  pleaded 564 

may  be  had  for  fraud  notwithstanding  bankrupt  discbarge 666 

agreement  that  on  failure  to  perform  party  may  rescind 694 

may  be  inf eri'^ed  from  acts 694 

when  new  contract  deprives  of  right  to  avoid  original  for  fraud 694 

sale  of  machine,  if  satisfactory,  may  rescind  without  notice 694 

must  tender  back  what  received  before  suit 700,  889 

and  promptly  on  discovery  of  the  fraud 700 

otherwise  if  seeks  to  recover  damnfjes  for  fraud 700,  889 

or  purchaser  realized  as  much  from  use  as  paid 700 

if  purchaser  abscond,  when  tender  to  wife  good  700 

See  Disaffirmance;  Moijification  of  Contract;  Specific  Performance ; 
Tender. 

RESERVATION : 

difference  between,  and  exception ,.  •  •  •  480 

REVERSIONER: 

owner  of  chattel  out  on  hire  may  sue  third  person  for  Injuring 417 

but  trover  will  not  lie  for  conversion 417 

owner  of  land  occupied  by  tenant,  also  tenant,  may  sue  third  person...  417 

landlord  may  maintain  action  against  tenant 417 

but  injury  must  be  permanent 417 

cannot  sue  for  nuisance  driving  tenant  away 417 

though  prevents  again  letting 417 

when  sale  by,  set  aside  for  fraud 417 

what  should  state  in  his  complaint 450 

may  recover  for  waste  though  alienates  before  suit 476 

rule  of  damages  in  suit  for  cutting  trees _ 478 

assignee  of  lease  cannot  sue  for  injury  to  reversion 889 

unless  also  owner  of  reversion 889 

REVIVOR.    See  Abatement  and  Revivor. 

REVOCATION:  ♦ 

of  agent's  authority  need  not  be  pleaded 567 

See  Rescission. 

REWARD : 

interpleader  lies  between  parties  claiming 360,  872 

sheriff  who  goes  to  another  State  may  recover 417,  889 

so  sheriff  may  recover,  if  has  no  process  for  arrest US,  889 

otherwise,  if  holds  process  for  party's  arrest 418,  889 

one  who  employs  servant  to  arrest  may  recover ._ 418 

person  who  gives  first  information  leading  to  arrest,  entitled 418 

no  matter  what  the  motive 418 

one  who  avails  himself  of  information  from  another,  not 418 

information  must  be  given  with  a  view  of  being  acted  on 418 

if  two  give  jointly,  must  both  sue 418,  889 

jeweler  to  whom  watch  brought  to  informed,  and  one  of  thieves  con- 
fessed    418 

when  information  not  too  remote 418 

party  communicated  suspicion  to  another,  who  acted 419 

reward  and  resolution  of  coinmon  council  to  be  read  together 419 

reward  for  persons  who  committed  arson 419 

police  officer  arrested  boy,  and  superintendent  informed 419 

officer  delayed  giving  i nformation  to  obtain 419,  420 

Joscr  promised  to  pay  F,  but  police  restored  bonds 420 

if  police  received  information  from  ot'aer  sources 420 


992  INDEX. 

REWARD  —  Contimied.  page. 

one  who  finds  pocket-book  on  desk  at  bank  where  left,  not  entitled 420 

one  who  offers,  must  pay,  though  no  interest 420 

horse  stolen,  plaintiff  informed  owner  D  had  it 420 

when  need  not  show  conviction  of  thief 420 

board  of  supervisors  awarded  to  plaintiff  and  another 421 

when  must  arrest  criminal  and  find  property  both 421 

test  is,  who  found  out  and  communicated  facts 4;1 

and  mere  officer  who  acts  upon  information,  not  entitled 421 

servant  gave  information  to  mistress,  and  she  communicated 421 

giving  information,  without  knowledge  of  reward 422 

although  aids  in  convicting 422 

offered  to  bank  officers,  when  one  not  such  an  officer  entitled 422 

if  offered  without  authority  of  directors,  they  must  promptly  re^  udiate,  800 

when  finder  of  part  entitled  pro  rata .' 422 

finder  has  lien,  and  may  retain  till  reward  paid 422 

but,  see  contra 889 

so  one  finding  and  preserving  logs 422 

a  sunken  canal  boat  raised 422,  874 

offer  of,  may  be  revoked 423 

should  be  complied  with  within  reasonable  time 423 

record  of  conviction  not  conclusive 423 

reward  offered  by  a  town 423 

reward  for  recapturing  escaped  prisoner  not  recoverable  by  one  who 
assisted  in  escape,  but  concealed  fact 423 

RIVER : 

liability  of  owner  of  vessel  sunk  in 387 

when  no  right  to  pass  over  wharves  to  reach 477 

easement  to  fish  in  lost,  if  channel  changed 670 

channel  of,  to  be  carefully  guarded  against  encroachments 686 


SALE: 

purchaser  designated  carrier,  but  goods  dei'.eered  to  another,  no  title 

passes 428 

when  loss  on  resale,  not  recoverable  by  seller 423 

of  hides  to  arrive,  may  deliver  those  not  coming  on  seller's  vessels 423 

otherwise,  of  goods  on  a  particular  ship 423 

of  article,  if  it  works  well 424,  891 

if  does  not  work  well,  patent  to  be  re-assigned 424 

if  vendor  promise  to  furnish  vendee  with  means  of  trial 424 

vendee  must  try  within  reasonable  time 4;i4 

if  lends  goods  to  be  paid  for  if  damaged,  and  they  are  damaged 424 

goods  delivered  to  be  paid  for  "  when  sold,'"  presumed  sold  after  reason- 
able time 424,  890 

and  may  be  recovered  for,  on  count  for  goods  sold  and  delivered. . . .  890 

on  condition  may  be  returned,  cannot  be  if  damaged 4134 

if  returned  and  injury  concealed,  vendor  may  recover  damages 424 

if  occur  through  vendee's  fault 424 

provided  be  secret  and  unknown  to  seller  at  return 424 

with  privilege  of  return  vendee  excused,  if  property  escapes 424 

to  sell  crop  of  corn,  "  to  be  delivered  in  merchantable  order  " 424 

if  for  cash,  vendee  cannot  tender  vendor's  note * .  424,  832 

nor  his  own.  unless  cotidition  of  sale  for  cash  waived 892 

on  sale  title  not  to  pass  till  payment,  vendor  cannot  sell  again  witliout 

notice 424 

and  vendee  may  tender  deficiency i'.H 

if  executory  and  no  ivariaiihj,  vendee  must  examine  before  acceptance,  425 

8S1 

otherwise,  if  a  warrr.nty 425,  891 

or  acceptance  induced  by  fraud 891 

or  inconvenient  to  examine 8^1 

agreement  to  make  "  three  or  four  models  " 425 

on  contract  to  deliver  logs  at  particular  place,  title  passes  on  de'xivery . .  890 
though  seller  required  to  scale  them 8C1 


i^DEx.  993 

SALE  —  Continued :  page 

if  price  not  specified,  fixed  by  market  price 891 

if  two  articles  usually  mixed,  seller  may  follow  usual  practice 891 

iSee  Goods  Sold;  Illegal  Contract;  Impossibility;  Notice;  Perform- 
ance ;  Reasonable  Time  ;  Rescission  ;  Tender  ;  Vendor  and  Vendee  ; 
Warranty. 

SALVAGE: 

jurisdiction  of  State  courts  in  cases  of 739 

SATISFACTION : 

remedy  where  fraudulently  obtained 366 

agreement  to  publish  mutual  apologies  may  be  pleaded  in 678 

how  far  parol  contract  is  of  a  sealed  one 684 

See  Accord  AND  Satisfaction;  Modified  Contract;  Payment. 

SATISFACTORY  NOTES : 

agreement  to  pay  in 693 

SCANDAL: 

what  is,  and  remedy 239 

SCANDALOUS : 

if  plea  in  mitigation  is,  will  be  stricken  out 575 

matter  may  be  stricken  out 590 

SCIENTEB: 

how  and  when  must  be  alleged 220 

when  not  necessary  to  allege  party  knew  of  custom 319 

See  Animals;  Negligence;  Notice. 
SCRIP: 

when  replevin  will  not  lie  for 310 

remedy  in  actions  for , 310 

SEA: 

in  case  of  wrongs  committed  at , 739 

SEALED  CONTRACT.    See  Modified  Contract. 

SECRET : 

selling  and  agreeing  may  use  seller's  name  on  labels 676 

SECRET  PREPARATION: 

agreement  for  sale  of 690 

SECRET  PROCESS: 

disclosure  of,  will  be  restrained 352 

SECUNDUM  ALLEGATA: 

parties  to  so  succeed 505,  561,  562,  564 

facts  not  pleaded  proved  without  objection 661,  (XQ,  892 

SECUNDUM  ALLEGATA  ET  PROBATA: 

judgment  to  be 787,  788 

SEDUCTION : 

does  not  lieunless  relation  of  master  and  servant 425 

except  where  seducer  fraudulently  obtains  indenture 425 

must  be  loss  of  service,  however  slight 435 

and  must  be  immediate  cause  of  sedviction 425 

mere  seduction  without  pregnancy,  loss  of  health,  or  injury,  insufficient,  425 

but  communicating  venereal  disease  is ...  425 

125 


994  iiTDEX. 

SEDUCTION  —  Continued :  page. 

so  though  no  pregnancy  or  sickness  if  seduced  from  service 425 

slightest  sei'vice  sufficient 425 

and  relation  exists  when  right  to  command  services 425 

party  seduced  cannot  maintain  action 425 

but  if  promise  to  marry  may  show  seduction  in  aggravation 423 

relation  must  exist  at  time  of  seduction 4:JG 

mother  cannot  maintain,  though  father  die  before  lying  in 423 

but  will  in  Tennessee 8Q'.i 

otherwise  if  husband  dead  at  seduction 426 

or  he  and  wife  separated  and  daughter  lives  with  mother 426 

right  of  action  does  not  survive,  nor  is  it  assignable 426 

step-father  may  maintain  if  daughter  lives  with  him 426 

oth(>rwise  if  she  resides  elsewhere 426 

contract  for  future  illicit  intercourse  illegal 426 

how  far  past  a  good  consideration 426 

promise  by  father  of  illegitimate  to  mother  if  will  not  charge  him  with,  426 

otherwise  if  she  afterward  charge  him  with  it 426 

that  plaintiff  knew  of  and  consented  must  be  pleaded 564 

so  for  seducing  wife 564 

otherwise  if  do  not  amount  to  consent 567 

that  plaintiff  and  wife  alienated  in  affections 567 

parent  allowed  daughter  to  "  bundle  " 892 

SEIZIlsr: 

covenant  of,  not  broken  by  setting  aside  judgment 316 

SEPARATE  DEFENSES: 

defendant  may  interpose  as  many  as  has 606 

but  must  be  separately  stated 606 

but  this  rule  does  not  refer  to  denials 608 

each  must  be  perfect  in  itself  606,  607 

when  and  how  far  may  refer  to  another 606 

same  defense  not  to  be  stated  in  different  ways 607 

but  may  in  few  cases 609 

each  must  refer  to  cause  of  action  intended  to  answer 608 

if  not  sppai-ately  stated  and  numbered 608 

or  refer  to  cause  of  action  intended  to  answer 609 

SEPARATELY  NUMBERED : 

what  is  separately  stating  causes  of  action 639,  640 

SERA^ANT    See  Master  and  Servant. 

SET-OFF : 

actions  by  or  against  survivor ,  146 

rule  different  on  sale  from  where  debt  created 405 

action  to  compel 426 

on  motion,  court  protects  attorney 426 

otherwise  in  action 427 

costs  of  one  suit  against  another 427 

one  demand  not  due 427 

report  or  verdict  assigned  before  judgment 427 

insolvency  as  a  ground  for 427 

whether  tenant  can  set  off  damages  from  percolation 694 

what  rule  of  damages,  and  how  shown 694,  695 

not  obliged  to  set  off .* 695 

though  claim  for  not  properly  doing  work 695 

executor  sues  in  own  right  cannot  set  off  debt  against  deceased 695 

in  suit  for  unloading  coal,  part  lost  by  plaintiff's  negligence 695 

when  may  set  off  against  purchase  price 892 

cannot  set  off  if  agrees  not  to 892 

See  Counter-claim. 
SEVERANCE : 

when  action  may  be  severed 12G 

SHAM,  IRRELEVANT  AND  FRIVOLOUS: 

denials  not  stricken  out  as -. 546 


iinjEX.  995 

SHAM,  IRRELEVANT  AND  FBIYOJjOJJS  — Continued:  page. 

how  such  defenses  disposed  of « 611 

reply  may  be  stricken  out 7<i5-727 

cannot  have  j  udgment  if  material  issue  remains 725 

remedy  for  siiain  or  frivolous  denial 7G0 

matter  in  mitigation  merely  is 761 

remedy  against  such  a  demurrer 7C8,  771,  775-778 

not  allowed  to  answer  over  in  cases  of  frivolous  demurrer 769,  775 

unless  interposed  in  good  faith 775 

when  may  demur  to  such  a  pleading  and  when  reach  by  motion. 771-773 

in  order  to  strike  out  must  be  palpably  frivolous 772,  775-778 

when  sham  pleading  stricken  out , 772,  777,  778 

appeal  should  be  taken  from  the  order  and  not  the  judgment 772 

motion  may  be  made  before  time  to  amend  expires 773 

and  if  amends,  motion  denied  without  costs 778 

where  judgment  to  be  applied  for  on  ground  pleading  frivolous 794 

practice  before  Code  as  to 645 

originally  no  provisions  as  to,  in  Code 645 

what  treated  as  sham  before  Code 645 

if  verified,  court  would  not  try  questions  on  affidavits 645 

affidavit  to  strike  out  what  required  to  show 645 

when  court  struck  out 645 

provisions  of  Code  as  to 64G 

what  are  "  sham  " 646,  647 

what  '■'■faUe  " 6-i(;,  647 

what  '■'■frivolous  " 646,  647 

what  "  irrelevant " 64]] 

if  verified,  not  stricken  out  as  false  since  Code 647 

though  may  be  as  frivolous  or  irrelevant 640 

mere  probability  of  truth  sufficient  to  save 647 

but  will  be  stricken  out  when  manifestly  false 647 

when  read  with  complaint  show  sham  or  frivolous,  stricken  out 648 

general  or  special  denial  not  stricken  out  though  affidavits  show  false.  648 

64'J 
answer  not  stricken  out  when  complaint  shows  no  cause  of  action. .....  648 

how  objection  to  be  raised 650-654 

difference  between  "  irrelevant  "  and  "  frivolous  " 650-654 

may  not  be  irrelevant  though  frivolous 653 

entire  answer  cannot  be  stricken  out  as  redundant 653 

that  term  only  applicable  to  surplusage 653 

not  irrelevant  simply  because  arose  after  suit 653 

counter-claim  not  to  be  stricken  out  as  irrelevant 653 

remedy  in  such  cases  by  demurrer 65.3 

or  by  motion  to  make  definite  and  certain 653 

how  judgment  obtained  in  case  of 653 

when  pleading  frivolous •  •  6.53 

must  be  palpably  so  at  first  blush 654 

if  any  doubt,  remedy  by  demurrer •  •  •  654 

SHERIFF : 

what  actions  against,  may  be  joined •  •  •  •  ^^^ 

actions  against '^1'^'  '^^^^ 

deputy  cannot  maintain  action  in  own  name I-y-s 

no  demand  necessary  in  action  for  moneys  collected 3~j^ 

liability  for  property  properly  levied  upon  but  not  sold '^•■i 

when  not  compelled  to  deliver  possession  of  narrow  strip 3','7 

if  sued  for  tort  need  not  be  described  as 42^ 

simple  averment  that  is  such,  sufficient 427 

liable  for  negligence  though   attorney  does  not  notify  of  residence  of      ^ 

party  to  be  served 42^ 

he  and  deputy  jointly  liable  for  tort  of  latter 42/ 

he  need  not  in  such  case  be  sued  as  sheriff 4"-7 

his  sui'eties  liable  in  such  a  case •  •  •  •  4'£( 

liable  for  surplus  money  on  foreclosure  though  paid  to  attorney 42<,  8(0 

arrested  wrong  party  who  made  deposit 428 

when  release  by  parties  does  not  bar  his  action 659 

liable  as  bail  and  no  defense  defendant  insolvent 6i;o 

when  statute  of  limitations  applies  to  acts '"''<* 


996  INDEX. 

SINGLE :  page. 

issues  required  to  be,  aud  mining  of  term , .  ...  782 

SLANDER : 

alleg;ations  of  special  damages 246 

if  not  actionable  per  se,  must  be  alleged 320 

loss  of  trade  as 320 

if  local  usage  as  to  meaning  must  be  averred i'dS 

as  word  "  blackmail " 428 

words  spoken  of  one  in  his  office 428 

but  words  imputing  such  in  any  occupation,  sufficient 428 

imputing  drunkenness  to  mariner 428 

to  a  mechanic,  want  of  skill 428 

duties  of  mechanic  to  be  averred 428 

words  applied  to  class  of  which  plaintiff  one 423 

"  your  boys  stole  my  corn,"  either  may  sue 428 

of  title,  must  be  false  and  malicious 428 

if  special  damages  necessary,  must  show  how  arose 429 

if  loss  of  customers,  must  be  named 429 

charging  female  with  want  of  chastity 429 

to  be  actionable  per  se,  must  impute  crime  and  moral  turpitude 429 

not  actionable  to  charge  with  military  crime 429 

charging  woman  with  keeping  "whore -house  " 429 

to  say  one  has  clap  or  pox 429,  892 

otherwise,  to  say  did  have  it 429,  892 

where  wife  gave  it  to  husband 429 

liability  of  witness  for  uttering 483 

See  Libel  and  Slandeb. 
SNOW.    See  Ice. 

SOLVENCY: 

presumed 389 

SON  ASSAULT  DEMESNE.    See  Assault  and  Battery. 

SPECIAL  DA.MAGES: 

allegations  as  to 244 

when  must  be  alleged 345,  246 

what  are  and  what  not 245,  246 

lost  employment  in  consequence  of  imprisonment 246 

when  agent  must  allege  costs  paid  as 293 

liability  of  carrier  for  not  transporting  in  certain  time 306 

author,  in  libel  for  criticism,  must  allege  and  prove 367 

for  publication  of  libel , 367 

must  show  how  they  arose 429 

if  loss  of  customers,  must  be  named 429 

from  destroying  mill-dam,  to  be  alleged 479 

if  alleged,  may  recover  for  loss  of  use  of  mill 479 

See  Damages  ;  Slander. 

SPECIFIC  PERFORMANCE: 

on  complaint  for  damages,  party  cannot  have 842 

80,  on  complaint  for,  cannot  have  damages 842 

unless  asks  alternative  relief 843 

not  decreed,  if  agreement  to  sing  or  act i 353 

not  decreed,  if  party  misled 379 

unless  vendor  refuse  to  perform,  vendee  cannot  recover  amount 
paid  without  showing  title  bad 382 

otherwise,  where  vendor  seeks  to  compel  performance 383 

not  decreed  if  evident  time  essence  of  contract 429 

party  in  default  cannot  insist  time  essence  of  contract 429,  894 

contract  must  be  definite ;  c(>urt  cannot  make  one 429 

but  may  be  rendered  so  by  other  papers  or  circumstances 429 

when  for  three  lives  or  thirty-one  years  may  be,  though  lives  not  des- 
ignated  893 


INDEX.  997 

SPECIFIC  PERFORMANCE  — CojitiHMed;  page. 

father  promised  son  to  convey  to  him 430 

so  to  make  a  will  iu  his  favoi* 893 

to  transfer  stock 430 

when  cannot  direct  defendant  to  obtain  title icO 

when  may  be  compelled  to 8!)3 

reference  to  ascertain  whether  party  has  title,  etc 430 

how  incumbrance  disposed  of 4o{) 

of  agreement  to  lease,  at  rent  to  be  fixed  by  arbitrators 430 

purchaser  not  compelled  to  take  doubtful  title 430 

purchaser    knovvs    facts    and    buys  title  must  pay  whether  good  or 

not 431 

when  vendee  has  lien  for  improvements  and  money  paid 431 

when  contract  to  build  railway  or  house  enforced 431 

granting,  matter  of  discretion,  and  will  not  be  awarded  iu  hard  cases. . .  431 

8  Jo 

will  not  where  infant,  unless  for  his  advantage 893 

or  where  excess  of  land  to  be  leased  great 431 

or  mistake 431 

to  compel  railway  to  build  as  agreed 43:i 

so  church-wardens  from  ringing  a  bell 432 

construction  of  agreement  to  lease  at  best  rent 432 

by  tenant  for  life  with  leasing  power 432 

part  performance  entitles  to 432 

but  payment  ordinarily  not  sufficient 432 

but  will  in  some  cases 43^ 

acts  must  clearly  be  referable  to  part  performance 432 

of  the  agreement  set  up  in  complaint  and  not  in  answer 432 

possession  under  contract  sufficient 433 

otherwise  if  he  surrender  and  vendor  accept  possession 433 

if  possession  as  tenant,  and  not  under  the  purchase,  not  enough 433 

even  though  equivocal 433 

purchaser  remaining  in  possession  not  sufficient 433 

possession  must  be  delivered  and  accepted  under  the  agreement 433,  434 

act  must  be  in  part  performance  of  particular  contract 434 

decreed  of  agreement  to  build  fences 434 

to  pay  a  mortgage 431 

to  pay  a  dedciency  or  to  buy  a  debt 434 

complaint  shouldallege  readiness  and  willingness  to  perform 434 

and  offer  to  perform 434 

whether  necessary  to  bring  money  into  court •  • .  434 

where  heir  of  seller  a  lunatic 434 

purchase-money  goes  to  personal  representatives 434 

they  and  heirs  necessary  parties 4;^4 

with  compensation  if  wife  will  not  join 434 

she  cannot  be  compelled  to  release 434 

husband  and  wife  agreed  to  convey  wife's  property 4^35 

one  agreed  to  convey  another's  land 435 

may  decree  with  compensation  in  any  case •  •  •  435 

grantee  with  notice  compelled  to  perform 435,  893 

if  plaintiff  obtain  title  pending  suit 435 

slight  defects  invalid  if  vendee  iu  possession 4;35 

agreement  reformed  and  specific  pei'formance  decreed 435 

if  contract  void  by  statute  of  frauds  such  is  remedy  and  cannot  recover 

for  work  and  labor ^^j 

nor  for  money  expended  under  contract 491 

except  when  fraudulently  induced  to  do  the  worlc 191 

defendant  may  have  in  action  to  recover  money  paid  on  contract (>^1 

defeiidaut  may  demand  in  action  for  breach  of  contract  to  convey 6^33 

in  action  for.  that  agreement  be  delivered  up G3i 

courts  of  one  State  have,  of  lands  iu  aiiother ^;>8 

though  is  matter  of  discretion •  •  .• '^^8 

good  defense  that  was  woman  little  versed  iu  business  and  did  not 

understand  the  contract "Ipi 

though  no  direct  evidence  of  fraud  or  undue  influence (JJ<^ 

if  it  would  be  inequitable  to  decree ^'l 

or  when  agreement  does  not  fully  express  tei-ms  of  contract 09*^ 

so  if  buyer  misled  by  plan  presented  by  seller ''9'^ 

of  agreement  to  give  a  lien ^'•':' 

Mheu  court  will  nut  aid  ii  otiiur  party  will  be  seriously  injured >.-J3 


998  INT>EX. 

SPECIFIC  PERFORMAISrCE  —  Continued :  page. 

party  seeking  must  excuse  his  omission 894 

and  must  not  be  guilty  of  laches 894 

See  Vendor  and  Vendee. 
SPLITTING  CLAIM: 

one  of  two  creditors  taking  part  in  payment  of  half 663 

STAMPS : 

allegation  party  made  implies  stamped 435 

demurrer  does  not  lie  for  want  of  allegation  of 435 

want  of  may  be  shown  under  denial  of  execution 697 

or  may  be  specially  pleaded 697 

STATE: 

when  not  liable  to,  action  for  money  loaned  by  citizen  to  State  oflBcer,  640 
action  to  restrain  issuing  town  bonds 443 

STATE  COURTS.    See  Demurrek  ;  Former  Suit. 

STATUTE : 

requiring  two-thirds  vote  need  not  be  alleged 206 

how  pleaded 206 

how  facts  to  be  alleged  to  bring  within 208 

allegations  as  to  passage  of 206 

how  far  courts  judicially  notice 208 

how  of  another  State  to  be  pleaded 208 

may  plead  facts  in  language  of 260 

difference  between  pleading,  counting  upon,  and  reciting 435 

how  private,  pleaded 436 

does  not  apply  to  foreign  statute 436 

how  fact  that  contract  void  by  foreign  law  pleaded 436 

municipal  laws  and  ordinances 436 

how  foreign  statute  pleaded 436 

how  State  statutes  pleaded  in  federal  courts 436 

that  was  not  constitutionally  passed,  defense  of 303 

defendant  may  plead  in  same  manner  as  plaintiff 581 

STAY : 

not  ordinarily  gi-anted  in  one  suit  to  enable  defendant  to  litigate  in 

another 636 

on  account  of  discharge  after  judgment 655 

of  another  suit  for  counter-claim 637,  638,  639,  673 

STOCK: 

"When  replevin  will  not  lie  for  scrip 310 

remedy  in  actions  for 310 

transferred  on  forged  transfer 335 

action  to  recover  money  loaned  thereon,  what  a  counter-claim 632 

STOCKHOLDERS: 

when  and  how  may  sue 109,  859,  884,  894 

in  suit  to  have  stock  declared  fraudulent 110 

averments  in  actions  against 171 

liability  and  remedy  against,  for  capital  stock  distributed 411 

when  statute  of  limitations  commences  to  run  in  favor  of 682 

action  by,  to  compel  winding  up  of  company  and  payment  of  debts  ....  894 

when  cannot  restrain  contracting  of  debt 894 

though  directors  personally  liable  for  fraud,  company  not 894 

STREET.    See  Highway. 

SUBROGATION.    See  Substitution  or  Subrogation. 

SUBSCRIPTIONS : 

mere  voluntary,  void 437 

consideration  trustees  would  erect  new  building 437 

agreement  to  pay  annual  sum  for  support  of  minister 437 

for  medical  college ;  building  converted  into  female  seminary 437 

church  incorporated  after,  not  liable 437 

subscription  in  view  of  incorporation,  good 43S 


INDEX. 


999 


PAGE. 


SUBSCRIPTIONS  —  Continued : 

cannot  be  countermanded g^a 

when  must  be  by  attorney 

SUBSTITUTION  OR  SUBROGATION: 

surety  who  pays  debt  entitled  to • L'  Vi*, 

if  creditor  have  released  or  lost  a  security  surety  may  recover  back  ^^^ 

amount  paid ^3g 

indoiser  for  value  not  a  surety .^^ 

surety  must  pay  before  entitled  to •  •  •  •  •  •  •  •  • •  •  ■  •      '„ 

surety  for  part  not  entitled  to  security  for  another  part 4rfS,  «J 

creditor  entitled  to  security  held  by  surety ^° 

tenant  who  pays  to  protect  term ^g 

subsequent  owner  may  compel  payment. 

surety  by  refusing  to  pay  may  lose  right  ot • 

creditor  held  judgment  for  two  claims  may  assign  excess 4dy 

one  surety  not  entitled  to  security  given  by  another *5a 

one  who  released  levy  not  entitled  to •  •  •  •     ' 

one  who  voluntarily  pays  debt  not  entitled  to -w-^'  |^^ 

insurer  of  mortgage  may  contract  for ;•••;•: '"'A /I'M 

court  will  decre'-e  leaving  conflicting  claiins  to  be  ^f  enBined  .  .^ . . . ....  439 

not  ground  of  objection  that  party  may  abandon  sales  so  no  surplus ....  4dy 

court  fn  such  casi  will  compel  holder  to  sell  only  in  extraordmary  cases,  gJ 

junior  lienor  right  to  redeem  prior  lien „ 

if  pays,  is  subrogated  without  assignment g^ 

when  purchaser  not  entitled  to ; •  •   ..q 

agent  to  insure  must  obtain  written  policy 

but  may  be  subrogated  to  right  of  principal **" 

See  Surety. 

SUBSTITUTION  OF  PARTIES:  ^^ 

of  parties  plaintiff gg 

how  made  and  when  refused -^^^ 

bringing  in  husband •. -,y) 

no  bar,  that  one  defendant  has  become  assignee JJ- 

one  interested,  applying  to  be  made ^^^ 

of  parties  defendant 

SUGGESTION: 

of  marriage,  when  to  be  made  on  record 

SUMMONS:  ^.g 

what  form  of  relief  to  be  demanded  in •  •  ■  •  g„^ 

party  cannot  sign,  unless  an  attorney °  ^' 

SUNDAY:  „„(, 

rights  of  bailor  and  bailee  of  horse  on '  '  g^^ 

hiring  to  drive  omnibus  on 

See  Illegal  Contkact. 

SUPPLEMENTAL  ANSWER: 

cannot  deny  facts  admitted  in  original  answer ^^^ 

reversal  of  judgment  after  suit  must  be  set  u{)  by • 

if  before  answer,  may  be  set  up  in  original  answer jj 

when  cross-bill  of  such  matter  formerly  resorted  to ...••.  ^ 

when  may  be  interposed "  q^ 

former  object  of,  in  equity •  • g55 

to  set  up  adultery  by  plaintiff  after  suit '.'.'.'  655 

so  by  plea  puis  darrrien g^V  ggg 

former  object  of,  at  law '       ]  555 

release  or  award  after  issue ]  i . ! ! ! !  655 

judgment  and  satisfaction •  •  •  •  ,• "  V*  'i 655 

to  be  interposed  before  verdict  or  report  ot  reteree ^^^ 

but  might  be  on  trial  before  verdict ^^ 

discharge  might  be  pleaded  after  verdict ^^ 

if  after  verdict,  remedy  by  motion  for  stay •  •  •  •  g^g 

when  to  be  verified 656 

effect  of " 


1000  IIS-DEX. 

SUPPLEMENTAL  ANSWER— ConMnwed.  page. 

might  be  received  after  continuance 656,  658 

if  seasonably  pleaded,  court  bound  to  receive 650,  887 

if  not,  court  governed  by  circumstances 656,  657,  658 

how  far  waives  former  plea 656 

what  to  be  pleaded  puis  darrien 656 

matter  after  suit,  but  before  plea 635,  653,  656-658 

whether  set-off  accruing  after  suit,  may  be  pleaded 659 

payment  after  answer 659 

settlement  after  answer 659 

leave  not  gi-anted,  unless  court  satisfied  material 659 

release  by  defendant  to  plaintiff,  no  bar  to  sheriff's  action  on  replevin 

bond 659 

how  submission  to  arbitration  to  be  taken  advantage  of 659,  661 

but,  if  award,  is  bar,  and  to  be  pleaded 659 

need  not  be  flat  bar  if  material 660 

how  supplemental  differs  from  amended  answer 284-290,  660 

when  reply  to,  necessary 715 

See.  Amended  Answer;  Supplemental  Complaint, 

SUPPLEMENTAL  COMPLADSTT: 

former  practice  as  to •. 283 

what  set  up  by 284 

not  allowed,  where  same  end  obtained  by  amendment 284,  288 

when  under  Code 285,  286 

otherwise,  if  could  not 284 

to  bring  in  party 284,  285 

anything  occurring  after  suit  required  to  be  shown  by 284 

so  under  Code 285 

provisions  of  Code 284 

effect  of  serving  amended  instead  of  supplemental 285 

to  revive  after  year 285-287 

to  bring  in  party  out  of  jurisdiction  when  suit  begun 286 

whether  allowed  after  judgment  to  carry  into  effect 286 

what  should  state 287,  289 

who  to  be  parties  to 287 

formerly  flJed  only  on  previous  order 288 

to  revive  is  matter  of  right 288 

in  other  cases,  only  on  leave 288 

leave  refused,  if  laches 288 

thovigh  not  always  refused  in  such  cases 288 

refused,  if  untrue 288 

or  do  not  contain  good  cause  of  action  or  defense 288 

otherwise,  usually  allowed 288 

error  to  refuse,  if  promptly  moved  for 288 

not  substitute  for  original 288 

leave  to  serve  decides  nothing  as  to  rights  of  parties 288 

must  be  consistent  with  original 288 

and  of  facts  happening  after  suit  brought 288 

if  before,  should  be  by  amendment,  so  other  party  may  plead  anew,  288 

copy  of  proposed  new  pleading  to  be  served  with  motion  papers 289 

summons  for  relief  to  accompany  it 289 

effect  of  revivor 289 

what  not  an  answer  to 289 

whether  defendant  can  serve 289 

when  party  may  be  brought  in  by 660 

See  Supplemental  Answeb. 

SUPPLEMENTAL  PLEADING : 

matter  occurring  after  former  pleading  to  be  interposed  by 822 

SUPPLEMENTAL  REPLY: 

when  proper 727,  728 

SUPPLEMENTARY  PROCEEDINGS: 

how  far  a  defense 254 

a  good  defense 686 


INDEX.  1001 

„  PAGE. 

SUPPORT:  ^3 

right  of,  from  neigtibonng  land ggg 

of  party-wall 

See  Maintenanck. 

SURETY:  ^„p  ^r,- 

when  sued  and  when  not  with  principal 303 

when  may  recover  costs 2^^'  ggg   gg,- 

for  honesty  of  another. '  oq. '  gog 


when  cannot  terminate  liability • • .,.y.^ 

liability  where  agrees  debtor  will  pay  on  demand ^"- 

how  may  recover  payment  on  void  or  illegal  note •  •  ■  • ^°a 

^°r^7!y i..n  bond  without  eivins  other  opportunity  to  surrender. . ....  383 


383 
one  paid  bail  bond  without  giving  other  opportunity  to  surr«uu«.-. . ....  383 

when  discharged  by  creditor  losing  collateral  security <i^J,  rfJ« 

when  entitled  to  notice  of  principals  default •  •  •  •  ^;^ 

notice  in  cases  where  claims  contribution ■  •  •  •  ^^^'  ^ 

covenanting  to  pay  what  servant  embezzles ^•'*.  »»«'  |^^ 

mere  surety  cannot  redeem ^q 

not  liable  beyond  terms  of  contract. 446'  896   897 

liability  for  moneys  embezzled  by  clerk •  •  •  • *4".  »»»'  ^> 

of  public  officer  not  discharged  by  imposing  new  duties «U 

term  of  office  extended • ^0 

nor  by  change  of  statute  as  to  appeal • ^„ 

of  cashier  released  if  capital  of  bank  increased **" 

officer  gave  a  draft,  as  banker,  which  was  not  paid *|" 

to  a  firm  not  liable  if  one  retires. ..  ■•■■•••■■:■•••■■ 441 

guaranty  of  advances  to  two  not  liable  for,  to  one  •••.••• f^ir 

of  cashier  liable  if  he  holds  over  without  re-appomtnieut 441 

if  one  partner  buys  agreeing  to  pay  debt  other  is  snreL> ^ 

representatives  of,  not  liable • •  ■  •  •  •  •  •  •  •  ',''''':p'l' '  Aoit' 

not  liable  for  work  unless  performed  in  consequei.ee  of  hi.,  agieement.    48b 

how  far  can  avail  himself  of  counter-claim  by  debtor    "fiTS    866 

how  far  bound  by  suit  against  or  in  favor  of  PriHCiP;^! 'm 

to  undertaking  liable  though  principal  guilty  of  fiaud  . . .  .^ "'* 

how  far  navment  by  debtor  prevents  statute  of  limitations ooa 

wh^ndisdiaSdiuconseque^^ 

rai.m,t  show  Iral  agreement  note  to  be  collected  out  o    securities 693 

defense  that  creditor  refused  to  collect  when  debtor  solvent WT 

but  must  request  creditor  to  collect  by  process  of  law oj^ 

debtor  must  be  solvent ;^  ■-" ' '  L 698 

notice  before  obligation  due  insufficient g„g 

mere  delay  without  request  does  not  discharge. 

creditor  attached  property  but  discontinued  «uit     . . . ...    ■■■-■■■■■ ggg 

when  discharged  by  creditor  taking  P/operty  secured  by  on  piocess  .  by» 
signed  paper  to  which  another  named  as  party  did  not  «'Sii- •  •  •  -W^  »M  ^^ 
if  signs  on  condition  not  to  be  delivered  until  signed  by  another,  698,  89d,  896 

unless  such  party  be  the  principal. •  •  ■  •  ggV  ggg 

fiic^nino-  oaner  to  which  name  had  been  forged ^    '.,,f; 

that  one^member  of  firm  would  pay  debt;  new  note  given  and  other  ^^^ 

sued  ou  it  and  paid :••;•,"■■, 699 

not  liable  ou  bond,  name  of  payee  in  blank ;•■•;•■£; 'interest 'in  ad- 
extension  may  be  found  from  circumstances,  as  paying  i'^*®'^®^^  '"^*^    ggg 

miy  cmnpel  creditor  to  satisfy  out  of  fund  in  his  hands... 609 

for  debt  to  be  incurred  not  liable  if  part  applied  on  old  debt b^» 


for  debt  to  be  incurred  not  liable  it  part  appnea  uu  ui^x  v^^.^- ••••■•  ^^^ 

unless  assented  thereto :'-;'■:: VVKo.'.'i'.i.io'Wtf^'.i  Vr!  him*  699 

not  liable  if  creditor  falsely  represented  debtor  not  the^^^^^^^^  to  him   bjy 

for  particular  kind  of  flour,  not  liable  if  inferior  furnished o^j^^ 

if  for  particular  article  not  liable  for  diflereiit g,jg 

if  pays  illegal  obligation  may  recover g'-g 

caving  half  of  debt  may  recover  that •••••.  ■,••■■,;■  ;'i:i';, I:' ■,■,'  cq^ 

fordeWlt  of  officer  who  took  receipts  of  ye^V^^^'^  1;^;^^  P^^^.^^ed  unl 
if  servant  be  dishonest,  to  employer's  knowledge,  suiety  di^cHai^eci  un^  ^^ 

less  he  discloses •  ■ .- i ' '  7«  '-'^,',1 897 

but  mere  neglect  to  ascertain  deficiency  not  sumcient ^^ 

defense  that  one  is,  entirely  personal  gg^ 

any  material  change  in  terms  of,  discharges. . . .  ••.•••■•;•••, i^cyj 

if  principal  fraudulently  obtain  release,  surety  not  dischaiged >g^ 

creditor  in  such  case  may  be  relieved •• •••• 

See  Guaranty;  SuusTiTiiriox  oii  Subkogation ;  LNDERTAKiiva. 
120 


1002  INDEX. 

SURPLUSAGE :  page. 

what  is ^39 

bow  got  rid  of ^ .  239 

See  Irrelevant  Matter. 
SURRENDER: 

what  operates  as ^ 693 

SURROGATE'S  COURT: 

when  proceedings  in  a  defense  to  action  for  accounting. 667 

SURVIVOR: 

action  for  fraudulently  inducing  to  marry  does  not  survive 484 

when  may  be  joined  with  representative 110,  118,  119,  872 

may  join  claim  as,  and  one  due  to  personally H5 

when  and  how  may  sue  and  be  sued 146 

rights  of 146 

allegations  as  to  survivorship 225 

cannot  assign  partnership  property  to  pay  individual  debts 318 

representatives  of  deceased  partnei-  when  joined 441,  897 

of  any  other  debtor 441 

representatives  of  joint  surety  not  liable 441,  897 

when  may  show  joint  obligation  in  fact  several 441 

creditor's  bill  against  husband  and  wife,  if  she  die  after  issue,  cannot 

have  judgment  for  interest  devolving  upon  husband  by  such  death. . .  843 
representatives  and  survivor  for  breach  of  trust  and  street  funds  . .  .872,  897 

See  Abatement  and  Revivor;    Supplemental  Answer;    Supplemental 
Complaint. 


TAX: 

one  paid  another's  tax  by  mistake 169 

when  collected  cannot  be  recovered  back 441,  898 

until  assessment  reversed,  on  certiorari 441 

3quitable  action  will  not  lie  to  restrain  collection 441,  443 

remedy  by  certiorari  to  reverse  442 

or  mandamus  to  compel  striking  assessment  from  roll 442 

when  interpleader  will  lie,  if  property  partly  in  two  towns 442,  897 

statutoiy  provision  as  to  where  taxable  in  such  case 442,  897 

grantee  pays  without  eviction,  cannot  recover 466 

paying  void  tax  under  protest 466,  897 

TAX  PAYER: 

when  may  maintain  action  as  such 443,  898 

on  ground  of  cloud 442 

to  restrain  doing  act  in  which  has  no  special  interest 443 

cannot  restrain  paying  out  money 443 

even  though  a  creditor  of  the  corporation  443 

when  can  restrain  laying  down  horse  railroad 443 

people  cannot  restrain  town  issuing  bonds 443 

but  may  restrain  entering  into  illegal  contract 443 

money  illegally  collected  from,  belongs  to  county  and  nob  State 898 

TELEGRAPH  COMPANY: 

in  suit  for  total  non-delivery  no  defense  that  not  liable  for  delays, 

errors,  etc 699 

so  not,  that  did  not  have  message  repeated  or  send  another 700 

TENANT  IN  COMMON: 

one  suing  another 117 

rights  of  survivor 146 

one  may  sever  and  take  his  share 443 

and  if  other  refuse  to  allow,  guilty  of  conversion 443 

when  one  cannot  maintain  replevin  against  other 443 

one  selling  or  disposing  of  common  property 443 

one  removing  fixture  so  as  to  destroy  its  use 444 

court  of  equity  will  decree  partition 444 


INDEX.  ^^^^ 

PAGE. 

^EN.V^'■T  rX  COMMON -Co7iftmied; 

a-reement  to  work  farm  on  shares  makes  the  parties ^ 

ne  not    hible  to  other  for  rents  if  occupies  himself «^ 

eve.   thouth  the  occupancy  be  after  a  lease  from  co-tenant gj 

unless  he  have  received  rents  from  a  third  person ^ 

one  cannot  recover  money  expended  for  repairs «| 

trespasser  if  he  forcibly  dispossess  co-tenant ^^ 

one  cannot  recover  whole  of  agreed  price ^^ 

except  for  grass,  by  one  occuinjmg  premises \ .'.'.'.'.'.'.'.'.'.'.'.'.  iU 

one  can  sue  other •  • .•  •  •  •  ;•  v  v '.'.*.'.".'. 444 

but  two  cannot  join  m  a  suit  against  th  id  .  •■••••••• 45O 

What  must  be  pleaded • •  ••••••  *  •  * ; 704 

before  Code  could  show  was  or  license  from  one ^^ 

TENDER:  1^9^  !«! 

allegations  of,  and  proof  of  excuse 321 

where  time  of  performance  not  nxea _  g.,.) 

allegations  where  waived  or  unnecessary  .  ••••■••  •••••• ; ' 444 

need  not  tender  back  what  received  if  use  worth  more -^^  ^^^ 

uor  worthless  stock,  in  action  for  fraud  ■••••••• * ' ; 445 

vendor  need  not  tender  to  purchaser  of  vendee. ...  ••••••;„••••  _  _  445 

Though  ordinarily  tender  of  performance  required  to  assignee • .  •  •  «^ 

when  to  agent  who  effected  sale  good lA'^lCf AVm' ' '  445 

need  not  allege  if  show  party  put  it  out  of  power  to  peiform •  •  •  «^ 

in  cases  where  purchase  is  fraudulent • -^3 

where  general  extension 568 

under  allegation  of,  may  show  waiver '.'...'.'.W'.'.'.'.'. 568 

how  to  be  alleged • " '  •  x; ' " "  "J„"i',iof  V^'iirr-hjiVftr  from  vendee,  669 

of  what  seller  received  on  disaffirmance  against  purchaser  irom  v  ,  ^^ 

readiness  not  sufficient,  must  offer _  ^  ^  7qq 

or  if  purchaser  realized  as  much  by  use  as  paid ...  700 

if  purchaser  abscond,  ^vheu  tender  to  wife  good  .^ l  •. '.  *. '. ". '. ". . 688,  700 

readiness  to  pay  a  note  at  time  and  Place  payable ^^^ 

but  holder  entitled  to  verdict  for  that  amount.  — -•  — •  ^.       j^t^ 

if  ma,ker  desires  to  avail  himself  of,  as   *«"'^"' ^'^^^  ___,_" 70O 

court 689 

after  summons  issued ;••••-,' 689,  701 

if  after  suit,  costs  must  be  tendered ...  683 

to  plaintiff 's  clerk  after  suit .  ^ •  •  •  •  •  •  •  •  •  •  •••■•• ;;;;;; 701 

if  tender  not  sufficient  plaintiff  may  t;\ke  a>  d  ciedit^^  .^^.^.         ^^^ 

if  defendant  obtain  verdict  he  cannot  take  back  what  pam  ^^^ 

not  paid. ,.  •  •  i;,-—;^  ::r^,VJ  li^k" '/. 701 

proof  of  tender ^01 

waiver 'XT 

..  goes  on  CO  coiisuiu  lavyjoi.  ot.j  li^o  ■• 70]^ 

under  protest,  good.. V  "  VVf^'^hi^h'^hoVeVi .....'. '^^1 

if  has  choice  of  two  places  must  notify  which  cnosen. . .   . .  •_ 

mS  allege  articles  kept  ready  till  ^^/'X'e  Tender  o'f  one   ^.  l!  i!  i:    ....  701 

in  action  for  not  indorsing  "^^e  must  allege  tender  ot  one        ^^.^ 

to  attorney  with  authority  good,  though  denies  is ^^^ 

^1,l^^lg?^ted^^ '^  be  madV  at-^eM^e's-r^Jidence  1 TO. 

rffSudutntf? absents  himself  cannot  objec    to  want  <>f     ......  ■  •  •  •  ■  •  • ;  i.^^. 


1004  INDEX. 

TENDER  —  Continued :  pagr. 

waived  by  refusal  to  receive 702 

so  where  caunot  perform 702 

or  fraudulently  represented  could  not 702 

when  delivery  to  be  at  particular  place  must  allege  readiness  there 702 

if  no  objection  made  at  tender  cannot  be  afterward 702 

if  objection  on  one  ground  cannot  insist  upon  another 702 

ordinary  proceedings  stayed  in  ejectment  on  payment  of  rent  and  costs,  702 

but  not  if  for  not  repairing  without  securit)' 703 

or  for  sub-lettting 703 

to  one  of  two  joint  coTitractors,  good 703 

of  deed  when  must  have  cex'tiflcate  of  county  clerk  attached 703 

on  agreement  to  purchase  bonds 703 

if  pledgee  sells  wrongfully  no  tender  necessary 703 

debtor  who  has  tendered  goods  in  payment  may  hold  as  bailee 703 

or  at  his  election  as  a  debtor 703 

rule  does  not  apply  to  executory  contract  to  sell 703 

of  premium  on  policy  of  insurance  equivalent  to  payment 703 

when  contract  assigned,  to  whom  to  be  made 703 

how  assignee  must  tender 703 

See  AccoKD  and  Satisfaction  ;  Notice  ;  Perfokmance  ;  Reasonable  Time. 

THIRD  PERSONS: 

when  allegations  as  to,  improper 253 

TIMBER  : 

agreement  for  removal  of 410 

TIME: 

how  lapse  of,  alleged 170,  171 

how  to  be  alleged 222 

See  Reasonable  Time  ;  Specific  Performance, 
TITLE : 

surrender  of  deed  will  not  revest 408 

drawee  accepted  an  order  for  flour,  so  as  to  pass 4G0 

after  once  passed,  former  owner  cannot  retake 4()1 

•  on  recovery  against  wrong-doer,  and  payment  vests  title  in 673 

how  right  of  waj^  to  be  pleaded 703 

should  carefully  describe  part  of  close  claimed 704 

one  who  throws  out  soil  bj'  license  may  sue  wrong-doer 705 

if  complaint  shows,  not  barred,  but  proof  shows  is,  should  allow  plea. . .  830 

See  Goods  Sold  ;  Reasonable  Time  ;  Sale  ;  Vendor  and  Vendee  ;  War- 
ranty. 

TORT: 

what  causes  of  action  sounding  in,  may  not  be  assigned 65-67 

when  may  be  waived 65,  877 

defendants  in  actions  for 129 

libel  and  slander 1';!) 

when  may  be  waived lod 

when  not 142 

when  cannot  be  maintained,  if  action  based  on  contract 140,  877 

waiver  of 190 

when  an  action  sounds  in,  and  when  not 190-193,  877 

complaints  in  actions  for 213 

when  complaint  not  in,  though  wrongful  refusal 3'd2 

when  people  cannot  restrain  from  issuing  bonds 443 

when  may  from  contracting  debt 443 

when  action  sounds  in',  and  when  on  contract 459,  877 

mere  pendency  of  suit  for  goods  sold,  no  bar  to  one  for  conversion 497 

otherwise,  if  proceeded  to  judgment 497 

waiver  of  conversion  of  money  by  agent 633 

and  though  states  con  vprsi'ui,  sounds  in  contract f)33 

separate  action  against  tiiflerent  wrong-doers 744 

See  Trespass  ;  Trover. 


INDEX.  1005 

TRADE-MARK :  page. 

right  to,  and  protection  by  iujunction 445. 

iiistiiiices  of  what  are 445-447 

uame  of  a  street 446 

sou  uot  restrained  from  using  family  name 446 

one  cannot  adopt  trade-mark  calculated  to  deceive 446,  898 

nor  can  his  goods  bear  same  name  as  rival  trader 446 

even,  in  many  cases,  a  common  name 446 

each  case  depends  upo7i  its  own  circumstances 446 

can  have  but  one  trade-mark,  and  must  affix  to  goods 447 

mere  declarations  or  advertiseinents  cannot  confer  right 447 

principle  does  not  apply  to  name  of  a  newspaper 447 

if  dissimilarity  such  one  not  calculated  to  be  mistaken  for  other 447 

only  protects  on  kind  of  goods  before  used 447 

if  only  small  quantity  sold  by  mistake,  no  action  lies. 447 

if  calculated  to  mislead,  courts  will  not  protect. 447 

if  used  by  "  executor,"  should  show  that  fact 447" 

nor  will  court  protect,  if  party  sells  short  weight 447 

good  defense  that  plaintiff  thereby  deceives  the  public 704 

but  one  fraudulently  imitating  cannot  object-that  plaintiff's  goods  inju- 
rious    704 

whether  may  use  same  as  plaintiflfs  for  entirely  different  goods 704 

laches  a  good  defense 704 

when  street  number  cannot  be  made  subject  of 859 

TRADES  UNION: 

effect  of  agreement  by  members  of 676 

TRANSACTION : 

what  is  the  same  transaction 136 

TRAVERSE : 

former  defense  by 500,  544 

See  Deniai*  , 

TREES : 

rights  of  parties  in,  standing  on  or  near  line 296 

agreement  for  removal  of 410 

removal  of  trees  cut  on  inortgaged  premises 475 

remedy  of  grantee  for  trees  cut  between  agreement  and  conveyance 475 

remedy  for  waste  in  cutting  by  tenant,  etc 475,  476 

See  Trespass. 
TRESPASS : 

defendants  in 129 

distinctions  in,  abolished 224 

old  form  of  declaring  in 224 

what  pleading  to  contain  under  Code 224 

allegations  as  to  ownership 224,  225 

injury,  how  stated 225 

motive  or  intent  immaterial 225 

wrongfully  took 225 

wrongfully  entered  close 225 

complaint  in 225 

owner  of  animal  liable  for  injury  by,  though  no  scienter 294 

breaking  and  entry  gist  of  action 294 

injunction  not  granted  to  restrain 353 

liability  of  married  woman  for 373 

lies  by  one  tenant  in  common  against  other  who  forcibly  dispossess 444 

of  two  kinds 448 

definition  of,  to  real  and  personal  property 448 

breaking  and  entry  grist  of  action;  other  injuries  mere  aggravation 448 

action  failed  if  no  breaking  and  entry 448 

rule  under  Code '. 448 

distinction  still  preserved 448 

but  if  facts  stated  may  be  amended  by  striking  out  allegations  as  to 

breaking 899 

liability  for  injury  by  animal  trespassing -  448 

liability  for  diseased  sheep  trespassing 448 


1006'  INDEX. 

TRESP  A  SS  —  Contimie.d :  paqb. 

judgment  for  defendant  in  qnare  clausum  no  bar  for  taking  personal 

property 448 

purchaser  under  agreement  lor  deed  may  maintain 448 

owner  has  right  to  support  if  soil  in  natural  condition 449 

but  none  to  for  superadded  structure 449 

right  to  puU  down  house  without  propping  neighbor's 449,  889 

digging  well  so  house  fdl 449 

must  be  appreciable  damage 440 

right  accrues  when  building  falls 449 

one  who  sells  for  particular  purpose  must  leave  support  for  that 449,  899 

no  action  for  stopping  footway  so  public  travel  over  neighbor's  land 449 

A  enters  B's  close  and  leaves  his  property,  A  may  return  it 450 

A  enters  B's  lands  and  takes  his  goods,  A  may  enter  B's  and  retake,  450,  900 

otherwise  if  A's  goods  on  B's  without  fault  of  latter 450- 

when  one  whose  property  stolen  may  enter  another's  close  to  search. . . .  900 

A  entering  B's  land  and  stopping  a  water-course 450 

right  to  enter  another's  land  to  repair  division  fence 450 

to  repair  dam 478 

to  abate  nuisance 686 

if  line  erroneously  agreed  upon,  owner  estof)ped  from  suing  for  crops..  450 

704 

one  tenant  in  common  not  liable,  neither  is  his  licensee 450 

going  to  attorney's  office  to  pay  note  and  tearing  it  up 450 

plaintiff  must  have  possession  though  owner 450 

unless  premises  in  possession  of  tenant  at  will 450 

but  owner  may  maintain  action  on  the  case  against  tenant 450 

if  states  the  facts  showing  he  is  a  reversioner 450 

but  owner  may  maintain  action  after  obtains  possession 450 

party  suing  must  show  had  actual  and  peaceable  possession 451 

party  having  oldest  possession  prima  facie  entitled  to  recover 451 

fruit  dropping  on  another's  lands 451 

title  to  trees  on  or  near  boundary  line , 451 

action  lies  for  destroying  line  tree 451 

allowing  water  to  run  from  one's  eaves 451 

but  right  of  drip  acquired  by  user 451 

cutting  timber  after  agreement  for  sale,  but  before  deed 451 

one  redeeming  may  maintain  for  injury  between  sale  and  redemption..  451 

so  one  purchasing  under  mortgage  foreclosure 451 

owner  bound  to  use  so  as  not  to  injure  neighbor 451 

carelessly  firing  a  blast 451 

by  owner  of  a  pew  in  church 452 

temporarily  obstructing  street  while  building 452,  8(59 

nailing  board  over  another's  garden 452,  705 

distinction  between  trespass  and  case 452 

slight  interference  renders  a  party  liable 452 

as  by  signing  indemnity  bond 452 

execution  creditor  not  liable  by  becoming  party  to  interpleader 452 

though  property  sold  under  interpleader  order 452 

when  is  not,  for  approving  levy  by  officer 899 

purchaser  under  execution 453 

nor  sheriff  for  requiring  certificate  of  indebtedness 452 

attorney  who  issues  execution 452 

party  directing  suit  against  A,  and  B  sued 452 

party  not  liable  for  void  process,  unless  sets  it  in  motion 453 

issuing  execution  on  paid  judgment 453 

party  not  usually  liable  for  acts  of  attorney 453 

officer  nut  liable  for  executing  pi'ocess  after  return  day 453 

when  irregular  process  will  pi'otect  party  after  set  aside 453,  873 

when,  if  judgment  reversed 453 

slightest  intermeddling  sufficient 453,  899 

party  not  liable  for  taking  wagon  lent  to  him,  if  taken  to  shop  for  re- 
pairs    455 

constable  levying  cannot  take  from  sheriff  holding  prior  levy 453 

if  one  directs  act,  cannot  show  would  have  been  done  without 453 

thief  may  sue  wrong-doer 453 

widow  may  sue  any  one  but  personal  representative 454 

owner  of  cattle  at  pasture  liable  for  injury  they  commit 4;>4 

otherwise,  if  liired  to  tenant 899 

driving  trespassing  cattle  into  highway 454,  300 


INDEX.  1007 

TRESPASS  —  Continued :  taoe. 

when  they  escape  through  his  own  defective  fence 454 

liability  of  bailee  after  has  offered  to  deliver  property 454 

setting  dog  on  sheep '. 454 

purchaser  under  foreclosure  eu  titled  to  crops 454 

so  devisee,  unless  excepted 454 

oflScer  severing  guard-chain 454 

owner  takes  his  wagon,  but  another's  whiffletrees 454 

if  owner  forbids  sale,  does  not  waive  purchasing 454 

nor  by  receiving  surplus 455,  899 

but,  if  sues  for  sale,  cannot  recover  surplus 455 

selling  property  got  on  void  contract  after  rescinded 455 

A  delivers  B's  goods  to  C,  liable  for  C's  refusal  to  deliver 455 

how  carrier  liable  for  negligent  loss 455 

even  if  trespasser  cannot  untie  I'ope  of  platform 455 

building  high  fences  on  ow7i  land 455 

lease  void  by  statute  of  frauds,  tenant  to  have  crops  then  growing  not 

liable  for  cutting 674,  873 

one  erroneously  fixing  boundary  estopped  until  authority  revoked 704 

before  Code  could  show  tenant  in  common,  or  license  from  one 704 

under  Code  must  be  pleaded 704 

leave  of  owner  after  agi'eement  to  convey,  but  before  conveyance,  good,  704 
when  corporation  liable  for  agent  taking  earth 899 

See  Conversion  ;  Trover. 
TRESPASSER: 

when  owner  of  animal  liable  for  injury  by,  to 294 

TRIAL : 

sale  on  trial 434 

no  objection,  that  causes  of  action  require  different  modes 753 

definition  of ^ 788,  793 

how  issues  to  be  tried 788-791 

whether  issues  of  law  to  be  first  tried 788 

how  equity  cases  to  be  tried 789 

issues  settled  for  jury  trial 791 

HWhere  judgment  to  be  applied  for,  on  default 793-795 

See  Equity  ;  Law  ;  Place  of  Trial. 
TROVER: 

who  may  maintain 75 

defendants  in 129 

cannot  be  joined  with  replevin 143 

complaint  in 213 

when  need  not  allege  possession 213 

by  personal  repi'eseutative,  conversion  after  death,  but  before  appoint- 
ment   213 

by  assignee  in  bankruptcy 213 

by  bailee 213,  214 

how  property  described 213 

lies  by  employer  against  one  winning  money  from  clerk 214 

value  of  chattels 214 

time  of  conversion 214 

demand 214,  215 

for  check,  payee's  name  forged 334 

origin  and  theory  of  action 455 

proof  by  plaintiff 455 

if  wrongful  taking,  no  demand  necessary 456 

otherwise,  if  came  legally  into  possession 456 

auctioneer  sold  horse  owner  had  already  sold 456,  458,  460 

title  not  to  pass  till  purchase-price  paid 457 

such  purchaser  can  give  no  title 457 

lies  for  money 457 

so  for  choses  in  action 457 

lies  for  pledge 457 

but  must  tender  amount  due 457 

action  to  redeem  pledge 457 

agent  misapplied  proceeds  of  bill  discounted 457 

remedj-  against  carrier  who  loses  property 457,  900 


1008  INDEX. 

TROVER  —  Continued :  page. 

one  in  whose  name  business  done  for  benefit  of  debtor,  has  title 457 

one  knowino;  bank-bill  had  been  found,  changed  it 458 

demand  necessaiy  of  purchaser  from  wrong-doer 458 

otherwise,  of  trespasser  from  a  trespasser 458 

taking  mortgage  to  secure  a  debt  not  a  conversion 458 

lies,  though  goods  returned ;  return  only  goes  to  damages 458 

action  once  accrued,  only  discharged  by  satisfaction 458 

rnerely  opening  boxes  and  taking  inventory,  not  retaking  of  property. .  458 

lies  for  property  pledged  on  an  usurious  loan 458 

bailee  must  return  to  bailor,  and  not  to  place  where  obtained  it,  at  peril,  458 

and  to  person  designated 853 

must  be  demand  of  bailee 458 

but,  if  bailee  deliver  to  another,  is  a  conversion 459 

not  necessary  against  fraudulent  purchaser 459 

but  seller  must  tender  back  what  received 459 

may  surrender  purchaser's  note  on  trial 459 

rescission  should  be  promptly  made 4.59 

where  action  against  infant  on  contract  and  not  trover 459 

when  sounds  in  contract  cannot  change  to  tort 4.59 

infant  hired  horse  for  one  place  and  drove  to  another 459 

liability  of  purchaser  from  bailee  making  fixture  of  personal  property. .  4(i0 
agent  selling  property  in  good  faith '...  460 

so  redelivering  to  wrong-doer  or  his  agent 900 

one  replevying  property  liable  to  after  suit  terminated 460 

one  took  watch  to  get  loan  and  refused  to  return 460 

for  coal  dug  by  mistake 460 

damages  for  property  intentionally  converted 460 

when  seller  accepts  order  so  as  to  be  liable  in  trover 460 

cue  took  off  wlieels  of  wagon  held  conversion  of  threshing  machine....  461 

chattel  mortgagee  sold  property  and  delivered  to  purchaser 461 

demand  only  evidence  of  conversion  when  has  property 461 

after  title  has  passed  former  owner  guilty  of,  if  retakes 461 

agent  for  selling  may  defend  on  ground  of  eviction 473 

when  mortgagee  cannot  maintain  for  trees  cut 475 

general  denial  in,  puts  in  issue  plaintiff's  title 515 

defendant  may  set  up  lieu 631 

one  who  throws  out  soil  may  sue  wrong-doer 705 

may  show  when  plaintiff  bought  goods  he  knew  belonged  to  another 705 

and  that  he  took  the  goods 705 

or  that  they  were  taken  on  attachment  against  true  owner 705 

seller  not  estopped  from  showing  taken  from  him  by  paramount  title  . .  705 

when  agent  to  sell  liable  for  collecting  draft 843 

owner  of  paper  collected  is  of  proceeds  so  long  as  can  be  traced 843 

whether  agent  to  sell  for  certain  price  guilty  of,  on  selling  for  less 843 

carrier  delivered  hides  to  defendant  by  mistake 900 

See  Conveksion;  Trespass. 
TRUSTEE : 

who  necessary  defendants  in  action  against 110 

one  cannot  sue  co-trustee  for  conversion Ill 

cestui  que  trust  suing 117,  127 

may  maintain  action  for  construction  of  trust  deed 312 

may  set  aside  fraudulent  transfer 338 

statute  of  limitations  in  favor  of,  for  not  making  report 682 

See  Officers  of  Corporations. 

TRUSTEES  OF  EXPRESS  TRUSTS: 

who  are,  and  how  to  sue 90 

when  cestui  que  trust  to  be  made  party 93,  107,  127 

TRUST : 

land  conveyed  to  one  to  build  on,  and  reconvey  on  payment  of  expendi- 
ture  903 


UNCONSCIONABLE  DEFENSE: 

rule  as  ty,  changed  by  Code 830 


INDEX.  1009 

UNDERTAKING:  page. 

liability  where  judgment  affirmed  as  to  one  appellant 461 

reversal  as  to  persotial  liability 461 

that  statute  allows,  is  sufficient  consideration 461 

otherwise  if  not  required  and  answers  no  purpose  461 

or  if  appeal  void 461 

bond  under  order  allowing  party  to  give 461 

legislature  may  increase  damages 461 

sureties  liable  though  defendants  practiced  fraud  on 462 

in  replevin  suit,  to  plaintiff  instead  of  sheriff  good 462 

in  such  action  not  necessary  to  allege  issuing  of  execution 462 

nor  in  action  on  any  undertalving  unless  expressly  required 462 

complaint  on  undertaking  to  discharge  from  arrest 462 

to  discharge  attachment  cannot  show  none  issued 462 

sufficient  evidence  of  all  the  facts  recited 462 

if  court  of  general  jurisdiction,  not  necessary  to  allege  facts 462 

to  procure  attachment,  action  lies  as  soon  as  set  aside 462 

and  if  set  aside,  undertaking  to  discharge  property  invalid 463,  705 

on  arrest  agreed  defendant  should  obey  orders  and  judgments,  surety 

must  pay  the  judgment 463 

plaintiff's  sureties  in  replevin  liable  for  costs  of  appeal 463 

so  on  appeal  to  county  court  for  costs  in  supreme  court 463 

simply  to  appeal  not  liable  for  judgment  below 463 

sureties  liable  though  judgment  lien  on  real  estate 463 

and  though  levy  on  sufficient  to  collect ....     463 

law  required  principal  and  sui'eties,  and  principal  did  not  execute 463 

not  void  if  more  favorable  than  statute  requires 463 

surety  who  pays  judgment  cannot  recover  back  though  reversed 463 

binding  though  one  of  respondents  dies 463 

so  liable  to  a  substituted  party 464 

80  though  new  undertaking  ordered  and  given 464 

sureties, in  such  case  as  between  themselves,  jointly  liable 464 

but  separate  actions  to  be  brought  on  each  undertaking 464 

though  bail  fail  to  justify  may  surrender  principal 464 

sureties  liable  though  excepted  to  and  fail  to  justify 464 

otherwise  if  new  sureties  justify 464 

not  liable  if  judgment  affirmed  with  leave  to  answer 464 

must  be  j  udgraent  of  affirmance ;  order  not  sufficient 464 

surety  in,  liable  though  party  for  whom  executed  guilty  of  fraud 674 

in  suit  for  injunction  what  complaint  should  show 705 

denial  that  court  decided  not  entitled  to,  good 705 

satisfaction  of,  releases  sureties  and  entitles  principal  to  return  of  prop- 
erty delivered  as  security  unless  sureties  party  to  fraud 901 

See  Replevin. 
UNDUE  INFLUENCE.    See  Fraud. 
USAGE.    See  Custom. 

USE  AND  OCCUPATION: 

when  landlord  may  sue  for 192,  201 

when  assignee  of  lease  not  liable  for 416 

when  does  lie 417 

when  deirisee  cannot  recover  for 693 

See  Lease;  Rent. 

USER: 

right  of  drip  from  eaves  acquired  by 451 

for  twenty  years  for  public  purpose 480 

USURY : 

when  usurer  may  sue  on  original  security 191 

when  may  recover  part  of  a  note 192 

how  money  usuriously  paid  to  be  recovered  back 193 

usurious  mortgage  given  to  one  partner  and  proceeds  applied  to  firm 

debt 402 

bill  lies  to  compel  surrender  of  usurious  security 408 

*'■  127 


1010  INDEX. 

USURY  —  Continued :  page. 

but  must  be  cloud  upon  title  or  some  equitable  reason  for  surrender. . . .  901 

receiver  of  usurious  borrower  may  recover  back  excess 410 

trover  lies  for  property  usuriously  pledged 458 

money  paid  on  usurious  loan  cannot  be  recovered  back 467 

setting  up  by  amendment 830 

variance  as  to  rate  of,  fatal  unless  amended 84'.i 


VARIANCE : 

betvT^een  name  in  summons  and  complaint 157 

how  reached 157,  158 

between  summons  and  complaint  as  to  relief  asked 158-161 

between  allegations  and  proof  of  consideration 167 

alleged  wrongful  act,  proved  negligent  one 476 

"  very  poor  and  of  little  value  "  not  supported  by  showing  worthless. . .  561 

under  allegation  that  act  ivrongful  may  show  negligent 566 

under  allegation  of  tender  may  show  waiver 566 

but  not  in  cases  of  protest 566 

authority  alleged,  may  show  ratification 566 

under  perf oi-mance  cannot  show  excuse 566 

nor  waiver 566 

amendment  in  such  case 566 

under  plea  of  entire  want  of  consideration  fails  if  any,  however  small..  669 

a  plea  of  accord  and  satisfaction  not  supported  by  proof  of  tender 701 

disregarded  if  no  objection  till  after  proof  closed 832 

provisions  of  Code  as  to 838 

designed  to  provide  against  unless  mislead 838 

but  not  to  cases,  where  case  unproved  in  scope  and  meaning 839 

if  the  whole  case  pleaded  fail,  is  not  a  variance 839 

court  may  allow  amendment  in  furtherance  of  justice 839 

but  not  when  changes  entire  scope  and  character  of  claim 839 

allegation  of  express  contract,  proof  of  an  implied  one 840 

allegation  of  written  contract,  proof  of  verbal  one 840 

allegation  of  mistaken  and  to  recover  back,  proof  of  agreement  to  repay,  840 
allegation  of  specific  performance,  defendant  sold  land,  proof  agreed  to 

give  to  son,  if  would  improve 840 

allegation  of  time 840 

allegation  of  wrong  section  of  statute 840 

allegation  of  agreement  for  sale  proof  of  that,  and  for  release 840 

allegation  of  protest,  proof  of  waiver 840 

allegation  of  non-payment  and  to  avoid  statute  limitations,  plaintiff 

proved  part  payment 840 

allegation  of  wrongful  taking,  and  to  recover  vindictive  damages  proved 

willful 840 

allegation  executed  note  as  collateral    security,  and    may  prove  de- 
livery   841 

allegation  that  falsely  and  fraudulently  made  certain  representations 

sounds  in  fraud 841 

and  unless  scienter  proved,  cannot  recover 841 

allegation  of  loss,  and  proof  of  destruction 875 

representations  as  to  what  will  do  in  future,  will  not  support  fraud  ....  841 
if  vendor  dispose  of  property  he  agreed  to  sell,  must  sue  for  breach  of 

contract 841 

and  cannot  recover  profits  without  agreement  to  sell,  on  account  of 

buyers  841 

on  complaint  against  carrier  for  conversion  proof   of  negligent  loss 

insufficient 841 

in  such  case  should  count  on  defendants'  duty  and  neglect  thereof .  841 

but  in  such  case  proof  that  carried  properly,  but  refused  to  deliver, 

insufficient 841 

BO  where  complaint  seeks  to  set  aside  conveyances  as  fraudulent,  and 

proof  shows  amounted  to  a  mortgage  from  wiiich  could  redeem  841 

complaint  in  replevin  if  returned  before  suit,  cannot  recover  damages 

for  wrongful  taking 842 

evidence  plaintiffs    sold  own  goods,  wiU  not  sustain  complaint  from 

money  paid 843 

80  on  complaint  for  damages  cannot  have  specific  performance 842 

so  in  complaint  for  specific  performance  cannot  have  damages ...  842 


INDEX.  1011 

VARIANCE  —  Continued :  paob. 

unless  asks  for  alternative  relief 842 

so  on  basis  of  legal  transfer,  cannot  recover  as  for  conversion 842 

if  allege  nuisance  upon  certain  premises,  cannot  recover  for  on  those 

adjoining 842 

allegation  was  gift  in  case  of  death  at  any  time,  does  not  sustain  gift 

7Ho?t(s  cauaa 842 

if  alleges  artificial  chanel,  not  sufficient  to  prove  a  natural  one 842 

as  to  rate  of  usury  fatal,  unless  amended 84.2 

to  recover  a  draft  and  also  money,  cannot  recover  on  proof  of  sale  of 

property  and  receipt  of  draft,  on  which  money  collected  and  deposited 

in  bank 842 

although  if  fads  had  been  set  out,  could  have  recovered 843 

or  in  trover  "if  not,  had  a  right  to  negotiate  draft 843 

creditor's  bill  against  husband  and  wife,  if  she  die  after  issue,  cannot 

have  judgment  for  interest  which    devolves  upon  husband  by  such 

death 843 

unless  have  misled,  may  be  amended  or  disregarded 843,  844 

what  variances  the  rule  covers 844,  846 

how  fact  that  misled  to  be  jn-oved 844 

what  is  a  change  substantially  of  claim  or  defense 845 

immaterial  variances  may  be  entirely  disregarded 845 

or  overruled  at  once  without  costs 845 

common-law  strictness,  that  allegations  and  proof  should  correspond, 

abolished 846 

sufficient  if  the  substance  of  the  allegation  proved 847 

VENDOR  AND  PURCHASER: 

notice  when  party  has  option 394 

vendor  cutting  timber  after  agreement,  but  before  conveyance 451 

ejectment  by  vendor  against  vendee 230,  321 

damages  where  purchaser  pays  in  advance 320 

purchaser  on  condition  title  not  to  pass  till  payment 323 

remedy  of  seller  on  a  fraudulent  purchase 459 

purchaser  from  bailee  who  makes  personal  property  a  fixture 460 

purchaser  from  one  whose  property  converted 460 

after  title  has  passed  former  owner  cannot  retake ...   461 

if  vendee  refuses  to  accept  deed,  cannot  recover  amount  paid 464 

though  agreement  void  by  statute  of  frauds 404 

to  deliver  between  certain  days,  and  give  four  days'  notice 464 

when  premises  at  risk  of  vendee 465 

when  pui'chaser  authorized  to  take  possession 465 

to  pay  price  on  arrival ;  lost  at  sea 465 

"foreign  refined  rape  oil"  must  be  such  though  equal  to  samples 465 

where  sellers  make  contract  when  not  bound  till  buyer  does 465 

if  buyer  in  default  ejectment  lies 465 

without  notice  to  quit 465 

also  for  injury  to  inheritance 466 

but  purchaser  not  liable  for  rent 466 

until  contract  ended  and  becomes  tenant  at  will 466 

when  seller  liable  for  rent 466 

vendee's  rights  extinguished  after  recovery  in  ejectment 466 

vendee  refuses  to  give  up,  and  vendor  cannot  perform 466 

vendee  in  possession  may  sue  for  injury  to  premises 466 

80  vendor  where  vendee  in  default 466 

if  vendee  leave  goods,  must  pay  vendor  for  keeping 466 

though  vendor  permits  vendee  to  take  them 406 

when  tender  at  vendee's  house  good T02 

if  vendor  dispose  of  property  he  agreed  to  sell,  must  sue  for  breach  of 

contract ^41 

and  cannot  recover  profits,  without  agreement  to  sell  on  account  of 

buyer 841 

See  Conversion;  Goods  Sold;  Lien;  Performance;  Reasonable  Time; 
Sale;  Tender;  Warranty;  Waste. 

VENUE: 

in  an  action  against  witness 483 

See  Complaint  ;  Place  of  Trial. 


1032  iisrDEX. 

VERDICT :                                                                                                              page. 
presumption  or  intendment  after 848 

VERIFICATION: 

object  of 279 

changes  in  provisions  of  Code  as  to 279,  280 

provisions  of  Code  as  to 280 

may  be  omitted,  where  privileged  from  testifying 280 

how  fact,  tliat  privileged  to  be  shown 280 

may  serve  affidavit  showing  privilege 281 

form,  when  made  by  agent  or  attorney 280.  281,  283 

on  written  instrument  for  payment  of  money 282 

in  other  cases 282 

form  by  party 279,  280 

not  good  to  say  substantially  true 281 

nor  according  to  best  knowledge  and  belief 281 

if  by  one  of  several  parties,  must  be  by  one  knowing  facts 281 

party  in  interest  may  verify 281 

guardian  of  infant  to  verify 283 

cannot  be  made  before  attorney 283 

remedy 283 

remedy,  if  verification  defective = 283 

copy  of,  must  be  served 283 

venue  of,  must  be  stated 283 

remedy,  if  omitted 283 

merely  addiug,  is  not  an  amendment 283 

court  may  allow,  to  be  amended  by  adding 283 

when  defendant  excused  from 600 

of  answer  to  be  same  as  complaint 641 

when  defendant  privileged  from  verifying 641-643 

if  one  defendant  privileged 641 

if  excused  as  to  part  of  pleading 641 

how  allegations  to  be  denied  in  such  case 642 

when  pleadings  do  not  show  excused,  afflda\'it  showing  to  be  annexed..  643 

otherwise,  if  excuse  appears  on  face  of  pleadings 643 

if  verification  required  and  none  annexed,  pleading  may  be  returned. . .  643 

or  notice  to  be  given  that  wUl  be  disregarded 643 

defendant  may  verify  answer,  though  complaint  not,  and  require  of 

reply 643 

when  may  state  true  to  his  knotvledge 643 

when  each  of  several  defendants  required  to  verify 644 

form  of  verification  in  such  cases 644 

maker  and  indorser 644 

who  are  united  in  interest,  so  one  may  verify 644 

when  one  defendant  acquainted  or  not  with  the  facts 644 

what  verification  to  show,  when  made  by  one 645 

what  when  by  attorney 645 

no  part  of  good  pleading 714 

when  required,  to  reply  and  when  excused 734 

VESSEL: 

lieu  for  raising  sunken 423,  679 

VOLUNTARY  ACT : 

boarding  from  charitable  motives 489 

going  journey  to  become  bail 489 

VOLUNTARY  PAYMENT : 

money  paid  voluntarily  with  fuU  knowledge  of  facts  not  recoverable. ..  466 

grantee,  without  eviction,  paying  taxes  assessed  before  conveyance 466 

paying  void  tax  under  protest 466 

even  though  collection  enforced  by  legal  proceedings 466 

if  ignorant  of  facts  when  gave  note,  must  show  was  at  payment 467 

executor  must  not  pay  interest  on  mortgage  on  lands  devised 467 

unless  oiit.  of  the  devisee's  fund  under  will 467 

city  paid  too  much  for  land,  owner  relying  on  that  assessment 467 

ooTitractor  removed  rubbish,  not  bound  to 4S7 


INDEX.  1013 

VOLUTSTTART  PAYMENT  —  Continued :  page. 

if  money  be  paid  on  usurious  loan,  not  recoverable 4C7 

iudorser  paid  note,  supposing  was  protested 467 

may  recover  back  money  paid  under  mistake ,....  467 

owner  paying  under  duress  to  get  goods 467 

so  paying  alleged  lien 467,  468 

but  rule  not  applicable  to  real  estate 467 

paying  illegal  sum  to  get  clearance  of  vessel 467 

illegal  costs  paid  without  taxation 467 

otherwise  if  taxed 468 

owner  of  one  of  several  parcels  paying  lien  on  all 4C8 

though  not  liable  to  personal  action- 468 

unless  personally  liable  to  pay  it 468 

one  paying  debt  not  liable  for,  not  entitled  to  subrogation 468 

VOLUNTARY  SERVICES : 

when  no  recovery  for 491 

VOTER: 

action  by,  lies  against  inspector  acting  improperly 468 

statute  requiring  "iron  clad"  oath  unconstitutional 468 

deserters  not  disqualified  until  after  conviction 468 

inspectors  liable  for  refusing  to  register 468 

though  may  reconsider  and  register  before  election 468 

whether  necessary  inspector  should  act  maliciously 469 

malice  may  be  inf eri'ed 469 

sufficient  that  act  was  wrongful 469 

whatever  is  intentionally  done  is  maliciously  done 469 

officer  liable  for  not  performing  ministerial  act 469 


WAIVER: 

how,  of  performance,  etc.,  alleged 180 

of  tort 190 

owner  of  horse  hired  need  not  return  hire  before  suing  for  injury 302 

of  right  to  set  aside  conveyance 326 

of  jury  trial 408 

or  one  by  owner  receiving  surplus  on  illegal  sale 455,  899 

owner  of  lost  bill  took  part  of  change,  none 457 

that  heir  cannot  maintain  suit  waived  if  not  taken  at  trial 481 

mere  failure  by  witness  to  object  that  fees  not  paid,  not  a  waiver 483 

when  none  that  conti'actor  does  not  object  or  complain 494 

may  be  shown  under  plea  of  tender 566 

but  not  of  protest  under  allegation 566 

under  allegation  of  performance  cannot  show  waiver 566 

amendment  in  such  case 566 

of  conversion  of  money  by  agent 633 

in  suit  to  restrain  foreclosure  defendant  demanded  one ;  cannot  waive 

after  trial 637 

if  obligation  of  third  person  to  be  in  full  if  paid,  is  though  paid  after 

maturity 663 

of  condition  that  suit  shall  be  brought  within  one  year 677 

of  objection  that  money  tendered  not  brought  into  court 701 

of  tender 701,  702 

if  not  personal  may  waive  that 702 

of  right  to  demur  by  answering .769,  773-77.5 

if,  does  not  answer  or  demur,  waives  objection  except  to  jurisdiction. 773-775 

or  that  does  not  state  cause  of  action 773-775 

whether  plaintiff  waives  to  a  defense 773 

must  specifically  object  that  plaintiff  has  not  legal  capacity  to  sue 773 

waives  objection  to  improper  joinder  of  parties 773 

or  to  coverture  of  plaintiff. 773 

noticing  cause  for  trial,  is  of  right  to  amend 820 

See  County  Court ;  Demurrer;  Trespass. 
WARRANTY: 

when  action  sounds  in,  though  allegations  of  fraud 192,  193 

difference  between,  and  fraud 221 


1014  INDEX. 

WARRANTY  —  Continued :  page. 

of  title 221 

when  and  how  far  agent  warrants  authority 292,  470 

as  to  premises  being  tenantable 365 

none,  where  bank  mistakenly  said  to  drawee  held  bill  of  lading 379 

on  executory  sale,  implied  that  article  merchantable 469 

if  not,  vendee,  after  reasonable  time  for  examination,  may  return,  469 

891,  901,  902 

it  express  warranty,  may  recover  without  offer  to  return 469,  891 

or,  if  acceptance  induced  by  fi'aud 891 

or  examination  inconvenient 891 

no  implied  warranty  as  to  quality  of  slops 469 

seller  may  warrant  that  is  a  particular  article,  as  "  Bristol  cabbage  " . . . .  469 

damages  in  such  cases 470 

but  such  warranty  must  be  specific 470 

when  breach  in  such  case,  occurs  as  soon  as  made 901 

not  implied  from  knowledge  of  use  intended  by  buyer 470 

unless  seller  a  manufacturer 470 

or  applied  to  to  furnish  particular  article 902 

none,  that  horse  not  glandered 470 

although  might  be  liable  for  fraud 470 

agent  presumed  to  have  authority  to  warrant 470,  902 

though  seller  instructed  not  to  warrant 470 

none  by  railroad,  that  goods  will  arrive  on  schedule  time 470 

damages  in  cases  where  agrees  to  deliver  at  particular  time 902 

warranty  that  horses  good  for  livery,  not  broken,  if  with  foal 470 

seller  of  account  warrants  has  one  for  that  amount 470 

so  one  who  sells  a  note 470 

so  that  makers  competent  to  contract 470 

unless  buyer  knew  facts 470 

pledgee,  who  returns  stock  held  as  collateral,  does  not  warrant 471 

bank  does  not,  though  says  to  drawee  holds  bill  of  lading 471 

purchaser  may  recover  on,  though  sold  property  for  full  value 471 

known  or  patent  defects  not  covered  by  general 471 

whether  defects  visible,  question  for  jury 471 

on  sale  of  provisions 471,  472 

innkeeper  furnishing  improper  food 471 

must  be  made  during  negotiations 473,  902,  903 

seller  made  representations,  and  horse  sold  at  auction  next  day,  472,  902,  903 

though  liable,  if  representation  fraudulent 472 

auctioneer  may  warrant 472 

made  after  sale  completed,  without  consideration 472,  902,  903 

evidence  of  amount  sold  for  at  auction,  competent 472 

otherwise  at  private  sale 472 

only  part  of  packages  opened,  jury  may  find  all  same 472 

but  condition  two  or  three  weeks  after  shipping,  no  evidence  of  at 

shipping 472 

on  judicial  sales,  no  warranty 472 

is  that  article  is  sound,  and  not,  will  remain  so 473 

unless  express,  made  as  to  future 473 

covenant  of,  not  broken,  if  conveys  with  right  to  carry  water 473 

otherwise,  if  right  of  way 473 

one  in  possession  impliedly  warrants  title 473 

otherwise,  if  not  in  possession 473 

if  vendee  notifies  vendor  of  suit,  latter  bound  by 473 

if  defends  without  notice,  must  prove  vendor  had  no  title 473 

but  vendee  can  only  recover  nominal  damages,  unless  pays 473 

vendee  may  yield  to  owner  and  recover,  if  eviction 473 

but  must  be  eviction 473 

if  one  sells  as  agent,  when  liable  on  warranty  of  title 473 

if  sued  in  trover,  may  defend  if  evicted 473 

if  part  of  demand  sold  paid,  vendee  may  recover  of  vendor 473 

on  sale  of  agreement  for  lease 474 

warranty  has  title,  if  agrees  to  lease •• 474 

warranty,  if  ordered  for  special  purpose 474,  902 

but  not,  if  special  article  ordered,  though  for  particular  purpose. . . .  474 

if  that  will  pass  inspection ;  if  does  not,  must  offer  to  return 625 

by  sample,  may  be  found  from  circumstances 902 

See  Sale  ;  Vendor  and  Vendee. 


INDEX.  I^^IS 

.  ___,  PAGE. 

WASTE:  238 

writ  of,  abolislied 23S 

remedy V  *  r l"./- <i=i9 

injunction  lies  to  restrain,  after  sale  in  partition ^2- 

remedy  of  party  redeeming,  for •  ■  •  •  ^i? 

remedy  by  mortgagee  for *'  *'      •. 

necessary  allegations  in  such  case ' 

remedy  of  mortgagee  iu  possession. • • 

how  far  court  will  restrain  removal  of  trees  cut *' J 

remedy  of  mortgagee  iu  such  case •••••; 

remedy  of  purchaser  for  cutting  trees  between  agreement  and  convey-  ^^^ 

auce 4ij'5 

cutting  willows,  when  not ; '  •  •  1' : a.7fi 

tenant  cannot  get  lire-wood  elsewhere,  and  cut  trees 4'» 

but  may  cut  for  self  and  hired  man's  house *'" 

unless  supply  of  timber  scanty . ••••••; .V A^a 

reversioner  may  recover-  for,  though  alienates  before  suit 4/b 

negligently  burning  a  building ^„g 

is  to  cut  trees,  if  supply  scanty ^^g 

so  to  remove  fodder t ^^g 

unless  justified  by  custom ^„g 

to  impoverish  by  constant  tillage ^~g 

to  cut  timber  and  erect  new  out-house 

cutting  of  ornamental  trees  restrained g 

rule  of  damages,  where  cut  by  tenant • •  •  •  •  •  •  •  ••;,••; 

H  equity  acquires  jurisdiction  to  stay,  will  decree  ^^'^''S^fJ^J^^^'^^^  476 
done 

WATER  AND  WATER-COURSES: 

allowing  to  run  from  eaves  upon  another „ 

when  covenant  in  deed  broken  if  right  to  exists  ••••••••• 476 

one  interfering  with,  liable  unless  authorized  by  statute *<o 

where  authorized  by  statute  liable  only  for  negligence •  •  *^^ 

f>nn<?iderino'  nature  of  stream,  etc •  •  •  •  • '. ^~r. 

i^f  railroad  company  changes  must  preserve  and  restore  to  channel 47^ 

liability  of  one  for  percolation •.•••••• 477 

wharves  built  by  authority  of  legislature  not  a  "uisance^  .. .... ......  *' 

owner  of  low  lands  not  obliged  to  dram  and  may  fill  up  so  will  not  drain  ^^^ 

othe™e'if  wTter'coilects  and'ruus  in  welV-deflned  channel g7 

if  different  owners  of  dams  each  to  contribute  to  repairs *' < 

if  bank  of  creek  gives  way  owner  not  bound  to  repair ' ' 

but  owner  below  may  enter  and  repair  breach 

owner  may  sink  well  though  destroys  neighbor  s |i,g 

unless  draws  off  surface  water ! ! !  478 

must  not  contaminate 47^'  9Q3 

throwing  refuse,  saw  dust,  etc.,  into ^^g'  g^g 

permitting  saw  dust,  etc. ,  to  fall  into  . . . ._ " ' ' "  U '478 

if  waste-weir,  does  not  give  right  to  put  in  new  raceway |i,^ 

conveyance  of  mill  gives  right  to  race  way 478*  479 

exceptions  to  rule • '  479 

when  sale  of  lands  over  which  raceway  reserves.  ■••'.••.•■.■■••,''' \' 4.7(1 

grant  of  miU  site,  if  no  mill,  gives  no  right  to  flow  adjoining  lands 4^9 

grant  of  right  to  dam,  binds  subsequent  purchasers ••••  ^^^^ 

though  at  purchase  old  dam  had  decayed 4.3 

mere  verbal  license  may  be  rivoked •  ••;, ; 47!) 

pose H  * '  ■  "u*  "•*  Y* . .  479 

ritrht,  to  but  not  to  raise  above  certain  neignr. • 'C'W  ' '      j.7<) 

purchaser  may  restrain  diversion,  though  was  gomg  on  at  purchase  ....  4^J 

grant  of  surplus  beyond  what  required  for  miU. ^„g 

grant  for  specific  purpose  restricts  to  use  for  that  . . . . . . .  - •  •      g 

Icquiring  right  to  flash  boards  for  particular  pait  of  year *^ 

owner  below  cannot  cause  back  water  to  mdl  above ^^ 

question  aa  to  height  of  water  and  not  of  dam ■'    ^^ 

placing  manure  so  filters  into ^  ^  4gQ 

may  be  detained  for  reasonable  time 


1016  liSTDEX. 

WATER  AND  WATER-COURSES— Cojitmued;  page. 

right  acquired  by  user  for  public  purpose 480 

liable  for  iiegligeuce  in  building  or  maiutainiug  dam 480,  904 

excepting  right  for  another  to  draw  from  spring 480 

right  to  cut  or  remove  ice 4S0 

covenant  to  draw  off  six  days  in  year  runs  with  land 480 

right  to,  can  only  be  granted  as  an  incident  to  land  480 

railroad  company  for  brealiing  away  of  embankment 387,  477,  904 

one  digging  ore  left  hollows  where  water  collected  and  did  damage 903 

one  tenant  in  common  cannot  acquire  or  transfer  rights 903 

right  of  one  to  enter  another's  land  to  stop 450 

if  alleges  artificial  channel  not  sufficient  to  prove  natural  one 842 

WAY: 

damages  in  action  for  obstructing 321 

when  covenant  broken  if  exists 473 

how  right  of,  should  be  pleaded 703 

how  of  necessity  to  be  pleaded " 705 

WIDOW : 

may  sue  any  one  but  personal  representatives 454 

cannot,  as  such,  give  title  to  property  of  husband 671 

See  Advancement. 

WILLS: 

where  comes  incidentally  in  question  court  will  construe 480 

action  will  lie  to  set  aside  for  fraud 481 

such  as  influence  of  clergyman  over  parishioner 481 

bill  for  construction  of 481 

allegations  in  such  case 481 

action  to  establish  and  prove  a  lost  will 481 

so  to  establish  as  against  heir 481 

who  may  maintain  action  for  construction 481 

objection  waived  if  not  taken  at  trial 481 

bill  to  determine  who  legatee  where  mistake 481 

rights  and  liability  of  administrator  without  knowledge  of 671 

See  Construction  of  Wills. 

WITHOUT  DELAY: 

agreement  so  to  do  act 410 

WITNESS : 

when  liable  for  damages  for  non-attendance 481 

plaintiff  must  show  some  damages 483 

but  need  not  show  had  valid  cause  of  action 483 

plaintiff  required  to  show  was  material 483 

and  that  his  absence  caused  inj  ury 483 

and  that  failure  to  try  on  account  of  absence 483 

must  show  subpoenaed ;  waiver  not  sufficient 482 

must  pay  daily  fees  including  Sunday 483 

mere  failure  to  object  no  waiver. ...   483 

what  plaintiff  required  to  allege  and  prove 482 

not  liable  if  had  reasonable  excuse 482 

or  not  subpoenaed  long  enough  before  attendance  required 483 

liability  for  not  producing  paper  on  duces  tecum 483 

where  action  to  be  brought 483 

not  liable  for  falsely  giving  testimony 483 

nor  for  slander  uttered  as 483 

nor  guilty  of  murder  though  by  perjury  procures  conviction 483 

WORDS: 

to  be  construed  according  to  ordinary  meaning 804 

WORK  AND  LABOR: 

when  contract  not  entire,  but  recovery  may  be  had  each  month 483 

if  liiring  for  definite  period,  must  be  full  performance 483 

agreement  to  play  two  weeks,  return  and  play  two  more 483 


INDEX.  1017 

WORK  AND  LABOR  —  Continued :  page. 

agreement  fco  work  one  year  without  designating  time  of  pajmient 48^ 

to  work  one  month,  and  if  satisfied  six  months 484 

so  to  hire  if  fills  place  satisfactorily 904 

if  works  more  than  one  elects  to  work  the  six 484 

privilege  of  leaving  if  dissatisfied 484,  904 

either  party  allowed  to  terminate  if  dissatisfied 484,  904 

man  who  has  wife  living  marrying  a  woman , 484 

woman  may  recover  if  affirmative  fraudulent  representation 484 

such  action  does  not  survive 484 

so  if  husband  under  such  circumstances  obtain  wife's  money. 484 

if  servant  wrongfully  discharged,  may  recover  wages  for  full  period. ...  485 

conditions  of  doing  so 904 

what  is  a  sufficient  discharge 485 

master  may  show  servant  during  time  been  at  work 485,  904 

and  is  his  duty  to  use  diligence  in  obtaining  work 485,  904 

remedies  of  party  wrongfully  discharged 485,  904 

action  on  one  theory  will  bar  others 485 

in  action  for  certain  work  instead  of  certain  period,  rule  does  not  apply,  485 

but  carrier  may  insist  upon  carrying  and  upon  full  freight 485 

one  party  cannot  modify  contract  without  assent  of  other 485 

to  work  one  year  payable  monthly  may  imsist  upon  all  past  months 485 

if  paid  monthly,  jury  may  find  agreement  to  do  so 485,  486 

agreement  to  do  certain  work  or  pay  certain  sum 486 

if  A  agrees  to  work,  cannot  compel  to  receive  another 486 

nor  if  agrees  to  take  coach  from  A  is  compelled  to  take  one  from  C 486 

surety  not  liable  for  unless  work  performed  iu  consequence  of  agreement,  486 

working  under  agreement  "  amount  of  pay  I  leave  to  you  " 486 

no  action  lies  until  I'ef  usal  to  fix  amount 486 

under  agreement,  as  employer  should  deem  right 486 

if  agreed  third  person  shall  fix,  no  action  lies  until  he  fixes 486 

agreement  to  do  to  satisfaction  of  third  person 486 

payment  to  be  made  on  production  of  cex'tificate  of  third  person 486 

unless  he  decline  to  act 486 

or  act  unreasonably  or  in  bad  faith 487 

or  adverse  party  decline  to  allow  him  to  act 487 

or  if  in  liis  employ  to  procure  him  to  act,  after  request • .  487 

party  procuring  arbitrator  to  refuse  cannot  recover 487 

amount  named  by  arbitrator  may  be  recovered 487 

without  further  proof  of  rendition  of  services 487 

provided  both  parties  had  notice  of  time  and  place  of  acting 487 

and  an  opportunity  to  be  heard 487 

if  be  apparent  no  notice  intended  need  not  be  given 487 

if  arbitrator  in  employ  of  party  he  contracts  he  shaU  act  and  do  so  fairly,  487 
to  do  certain  work  and  all  extra  ordered  by  certain  time  or  to  pay 

damages  each  day 487 

contract  that  if  does  not  proceed  as  rapidly  as  A  deems  necessary  may 

terminate,  etc 487 

employee  in  such  case  bound  to  pay  expense 487 

unless  delayed  by  acts  of  employer 487 

arbitrator  to  settle  only  such  points  as  referred  to  him 487 

his  decision  on  other  points  not  binding 487 

cannot  fix  price  of  work  not  within  contract 487 

contractor  agreeing  to  abide  by  decision  of  engineer  though  stockholder,  488 

or  be  the  party  in  interest 488 

although  if  a  judge  could  not  have  sat  in  the  case 488 

otherwise  if  unknown  to  contractor  be  party  in  interest 488 

if  architect  act  unfairly  court  will  relieve.  488 

agi-eement  to  work  for  A  if  will  remember  in  will 488 

no  action  lies  in  such  case  till  death  of  employer 488 

if  any  legacy  cannot  recover  though  inadequate 488 

if  to  be  paid  in  land  can  only  recover  value  of  services 488 

ordinarily  law  implies  promise  to  pay  for 488 

when    implied    between   parent    and    child    or    relatives,    and    when 

not 398.  399,  488-490,  883,  884,  904 

unless  intention  be  to  pay  and  be  paid  no  ex  post  facto  charge 489 

going  journey  to  become  bail 489 

keeper  of  county  poor-house  when  bound  to  pay  pauper 489 

sickness  excuses  performance 490 

wife  sick  so  could  not  play 490 

123 


101£  IXDEX. 

WORK  AND  TjABOU—  Continued:  page. 

80  as  to  any  other  inability  not  fault  of  party 490 

such  as  freezing  of  a  river 490 

or  founderina;  of  a  ship 490 

master  died  after  partially  iustructing  apprentice  490 

in  cases  of  such  failure  according  to  contract  rate 490 

when  master  justified  in  discharging  servant , .  490 

servant  went  to  see  sick  parent 490 

servant  refused  to  worlv  on  Sunday 490 

servant  left  in  consequence  of  harsh  language 490 

one  tenant  in  common  cannot  oust  co-tenant,  and  when  sued  for 

profits  recover  for 490 

or  for  moneys  expended 490 

if  one  enters  without  color  of  right,  cannot  recover  for. 491 

though  owner  promise  to  pay 491 

otherwise  if  entered  under  color  of  inght 491 

unless  contract  void  by  statute  of  frauds 491 

when  caunot  recover,  though  agreed  to  give  lease  if  would  do 491 

the  remedy  is  by  a  specific  performance 491 

except  where  fraudulently  induced  to  do  the  work 491 

no  recover^'  for  work  voluntarily  done  without  request 491 

although  law  will  presume  request,  in  first  instance 491 

when  officer  of  corporation  cannot  recover  for  491 

A's  logs  cari'ied  upon  B's  land 491 

no  defense  to  employer  that  agreed  to  pay  third  person,  unless  shows 

has 492 

value  of  services  may  be  proved  by  opinions 49^ 

but  not  how  much  worth  "  under  all  the  circumstances" 492 

cannot  recover  for  extra  hours,  unless  employer  agreed  to  pay 492 

agreeing  to  taking  pay  from  assessment  by  city 492 

where  neglects  to  assess 492 

must  count  on  contract,  unless  complete  performance 492 

if  not,  must  plead  facts 492 

officer  not  entitled  to  more  if  duties  increased 492 

nor  one  having  exti-a  work  done  on  house 492 

unless  informed  or  must  have  known,  would  increase  expense 492 

if  servant  properly  discharged,  cannot  recover  for 493 

as  for  selling  to  another  house,  of  which  he  is  a  member 493 

for  agent  must  faithfully  serve  his  principal 493 

but  traveling  agent  may  receive  orders  for  goods  of  another  house  ....  493 

discharged  for  drunkenness,  cannot  recover  for  what  has  done 493 

to  do  carpenter  work,  must  get  building  ready  for 493 

so  where  to  furnish  plans  or  do  other  acts 493 

and  if  unreasonable  delay,  may  recover  additional  expense 493,  494 

and  no  waiver  that  does  not  object  or  complain 494 

contractor  cannot  remove  obstruction,  and  recover  for  so  doing 494 

agreoment  to  employ  for  a  j'^ear,  to  commence  in  future  void 674 

if  peddler  required  to  have  license  has  none,  cannot  recover 676 

effect  of  agreement  by  members  of  trades  union 670 

when  contractor  bound  to  increase  number  of  laborers  or  may  rescind 

contract 690 

if  sues  in  assumpsit  may  set  up  done  under  contract  plaintiff  failed  to 

keep 690 

and  must  perform  the  entire  contract 691 

under  contract  to  make  three  or  four  models,  workman  may  elect 091 

may  sue  for  not  properly  doing  though  recovered  for 695 

good  defense  that  clerk  persisted  in  selling  to  firm  of  which  he  was  one,  706 
hired  to  use  best  endeavors,  etc. ;  plea  that  did  not,  wherefore  dismissed 

him,  good 708 

lace  buyer  required  to  "  card"  lace  and  refused 706 

hired  to  work  three  years  and  have  house  and  certain  sum  if  master 

sold,  unless  grantee  would  hire 904 

hired  to  drive  coach  on  Sunday 905 

See  Master  and  Servant;  Parent  and  Child.    ' 

WRITTEN : 

all  pleadings  to  be  legibly 808 

effect  of  not  being,  and  remedy  for 809 


INDEX.  1019 

A^IIITTEN  INSTRUMENTS:  paqb. 

how  declared  upon  by  giving  copy 174   176, 181,  18!^,  186 

how  declared  upon  by  substance 181,  ISli,  184-196 

not  necessary  to  state  are  in  writing 205,  254 

not  to  be  set  out  in  /icec  verba 228 

WRONG-DOER: 

no  demand  necessary  against 321 

when  cannot  recover  for  services  or  loss 491 

how  far  judgment  against  one  of  several  a  bar 672,  673 

release  of  one  is  of  all 673 

on  payment  of  recovery  obtains  title  to  property 673 

separate  actions  against  different  wrong-doers 744 

liable  to  one  throwing  out  soil  by  license 705 

See  Negligence. 
WRONGFUL  ACT : 

under  allegation  of,  may  show  negligent 566 


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